Snitching

Criminal Informant Law, Policy, and Research

International

Japan considers snitching

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Japan is introducing American-style plea bargaining in which defendants can trade information about others in exchange for leniency.  Some are concerned about the risks of snitching in general, and of wrongful convictions in particular.  The law is more limited than the U.S. version, and only permits certain kinds of deals and only for certain kinds of crimes.  From the Japan Times:

“Unlike the U.S. plea bargaining system, admitting to a crime does not warrant a deal with prosecutors in Japan. The new system, introduced in a revision to the criminal procedure law, allows suspects in such crimes as bribery, embezzlement, tax fraud and drug smuggling to negotiate with prosecutors. The bargaining only applies to crimes listed in the law, with murder and assault off-limits.”

Multimillion-dollar drug bounties for informants

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Bloomberg recently explored the State Department’s Narcotics Reward Program which offers bounties for information on high-ranking drug traffickers: America’s Multimillion-Dollar Bounty Program Just for Drug Lords.   As always, the program accepts the risk of rewarding and protecting serious, violent criminals in exchange for information about other potentially more serious, violent criminals.  As the article notes, “[c]ritics of the government’s rewards programs warn that huge cash bounties increase cartel violence and encourage corruption among U.S. law enforcement personnel. But the program’s success is hard to dismiss, its proponents contend.”  Other agencies, including the IRS and the SEC, offer large bounties to informants as well.

The pressure to become an ICE informant

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The Intercept published this extensive story on the ICE informant program, how individual migrants can be coerced into becoming informants, and how the practice intersects with various aspects of the immigration apparatus: Play to Stay: Undocumented Immigrant Faces a Choice: Become an Informant for ICE or Be Deported.  The piece documents both the relatively robust regulatory structure that ICE uses to manage informants, and how it can go wrong.  From the article:

   “Working with confidential informants is a controlled process with oversight from [Homeland Security Investigations] HSI management, [Agent] Robinette said. Informants are registered and receive identification numbers. Background checks are conducted. Supervisors must approve the agreements. Indeed, ICE dedicates an entire handbook solely to informants, though its contents have not been made public. A separate HSI handbook on asset forfeiture, leaked to The Intercept and also published by the independent media organization Unicorn Riot, says that ICE should “identify, cultivate, and retain assistance” from so-called confidential informants “who are intimately involved with targeted criminal organizations.” According to the handbook, employing an informant should be a last resort, and the decision to do so should be made only after weighing the informant’s reliability against other factors. Every dollar paid to informants should be carefully considered and documented.

At the same time, ICE informant practices suffer from many of the ills that characterize informant use more generally and in less regulated environments. As the article notes, “several news stories have highlighted the pitfalls of ICE-informant relationships. Agents have fostered improper liaisons with informants. In one case, ICE knew an informant participated in killings yet continued working with him anyway (the agent was later fired). ICE, along with the FBI, uses informants and then works to deport them. ICE defenders like Robinette paint these as isolated incidents, and, of course, most ICE informants don’t make the news.”

For similar stories and additional resources see these prior posts.

Coercion of Intelligence Informants

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Diala Shamas, staff attorney at the Center for Constitutional Rights, has just published this informative article in the Brooklyn Law Review: A Nation of Informants: Reigning In Post-9/11 Coercion of Intelligence Informants.  Here is the abstract:

“This article challenges the adequacy of the existing legal and regulatory framework governing informant recruitment and coercion practices to protect fundamental rights, informed by the Muslim-American experience. It looks at the growing law enforcement practice of recruiting informants among Muslim-American communities for intelligence gathering purposes. Although the coercion of law-abiding individuals to provide information to federal law enforcement agencies for intelligence gathering purposes implicates significant rights, it is left unregulated. Existing, albeit limited, restraints on the government agents’ ability to coerce individuals to provide information either assume a criminal context, or are driven by historical concerns over FBI corruption. As the U.S. government engages in widespread surveillance of Muslim-American communities, it relies heavily on recruiting members of those communities as informants. These individuals are targeted for their community ties, or their religious or linguistic knowledge—and not because of any nexus they might have to criminal activity. This has led FBI agents to search for coercive levers outside of the criminal process and that have far fewer procedural protections—namely, immigration and watch-listing authorities. Thus, existing protections that have evolved to prevent civil rights violations in the criminal informant context—limited as those protections may be—do not apply. In light of these expanding authorities and the significant rights at stake, this article makes several proposals that would regulate the recruitment of intelligence informants.”

ICE marks 17-year-old informant for deportation and death

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ProPublica and New York Magazine published this story about Henry, a teenager in Brentwood, Long Island, who agreed to inform on his MS-13 gang to the FBI.  The federal government then decided to deport him back to El Salvador, leaving him unprotected against the gang:  A Betrayal:  The teenager told police all about his gang, MS-13. In return, he was slated for deportation and marked for death.  From the story:

“Under normal circumstances, Henry’s choice would have been his salvation. By working with the police, he could have escaped the gang and started fresh. But not in the dawning of the Trump era, when every immigrant has become a target and local police in towns like Brentwood have become willing agents in a nationwide campaign of detention and deportation.”

For other instances where the government has failed to protect immigrant informants, see these posts.

More broadly, the government often pressures or incentivizes immigrants to give information which is then used to deport them.  This law review article surveys the law, and argues that such policies are counterproductive: Amanda Frost, Can the Government Deport Immigrants Using Information it Encouraged Them to Provide?  Administrative Law Review, Vol. 2, No. 97, 2017. Here is the abstract:

“This Essay describes the legal and policy issues raised by any systematic effort to deport unauthorized immigrants based on information the government invited them to provide. Part I briefly surveys some of the major laws, regulations, and programs that encourage unauthorized immigrants to identify themselves. Part II analyzes the strengths and weaknesses of the statutory and constitutional arguments that immigrants could raise as a defense against deportations based on self-reported data. Part III explains that even if the government’s systematic use of such data to deport unauthorized immigrants is legal, doing so would be a poor policy choice for any administration, even one that seeks to drastically increase deportations. The federal government has always balanced immigration enforcement against other goals and values, such as deterring crime, protecting wages and working conditions, collecting taxes, and preventing U.S. citizen children from being separated from their parents. Deporting immigrants based on information provided in the service of these greater goals would elevate immigration enforcement over all other federal policies. Furthermore, doing so would almost immediately render these laws a dead letter, since no rational unauthorized immigrant would apply for visas or pay taxes if doing so were tantamount to self-deportation. Accordingly, any increase in removals from the use of such data is sure to be fleeting, while the damage done to immigrants’—and perhaps all citizens’—trust in the government will be permanent.”