Snitching

Criminal Informant Law, Policy, and Research

Jailhouse Informants

Professor Robert Bloom on jailhouse informant expert testimony

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Professor Robert Bloom is an expert on informants who has testified in numerous cases.  He has now authored this article,What Jurors Should Know about Informants: The Need for Expert Testimony, Mich. St. L. Rev. (forthcoming 2019).  Here is the abstract:  

  With the advent of DNA exonerations, the data would indicate that many individuals have been wrongly convicted. In looking at the causes of the exonerations, nearly 20% have involved testimony by accomplices and jailhouse informants. The questionable credibility of these individuals has long been recognized by courts and legislatures. Reforms in this area include, enhanced jury instructions, pre-trial credibility hearings, and corroboration before the testimony can be introduced.  

  This article argues the efficacy of expert testimony to further assist jurors in measuring the credibility of these witnesses. Although the use of experts has largely been disfavored by courts, there has been a gradual movement to use experts for eyewitness identifications, the major cause of exonerations. The article proposes a similar movement for informant testimony.

Professor Bloom is also the author of the book Ratting: The Use and Abuse of Informants in the American Justice System (2002).

Illinois enacts nation’s strongest law on jailhouse informant testimony

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Last week, the Illinois legislature overrode the governor’s veto of Senate Bill 1830, which will enact the strongest law in the nation to prevent wrongful convictions based on false jailhouse informant testimony. The Illinois Innocence Project and the national Innocence Project supported the law, which was authored by Senator Michael Hastings (D-Tinley Park) and Rep. Art Turner (D-Chicago). Under Senate Bill 1830, Illinois will be the first state in the country to require judges to hold pre-trial reliability hearings before jailhouse informant witness testimony is admissible in murder, sexual assault and arson cases. In addition, the law requires prosecutors to disclose key evidence regarding jailhouse informant witnesses to the defense, including benefits provided in exchange for testimony, their complete criminal history, and their previous jailhouse informant activities. Illinois enacted these protections for capital cases in 2003; however, the law became moot when the death penalty was abolished in 2011.

Read more about the new law here.

posted by Michelle Feldman

Georgia prison official loses his job for objecting to informant program

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The Atlanta Journal-Constitution reports that Georgia prison captain Sherman Maine was fired when he objected to a secret, off-the-books informant program being run in high security prisons in which informants were given cell phones.  From the story:

“Maine said the secrecy of the program makes it impossible to know if the reward is worth the risk. ‘Now every stabbing becomes suspect,’ said Maine, 45. ‘We won’t know who’s an informant or not. They’re going to get someone killed, if they haven’t already.’ . . .  Maine said [the program] reveals a lack of respect for human life while exposing the state to great liability. ‘They de-value human life to the point that it’s ridiculous,’ he said. ‘The state kept referring to (informants) as tools. They’re not tools, they’re people, and we have an obligation to protect them.’”

Maine is suing the Department of Corrections for violations of the Georgia Whistleblower Act.

Illinois Governor Makes Disappointing Move on Jailhouse Informant Law

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Last month, Illinois Governor Bruce Rauner vetoed Senate Bill 1830, a protection against wrongful convictions based on unreliable jailhouse informant testimony, despite the bill passing the legislature with bipartisan support. There will likely be an opportunity for the legislature to override the veto in November.

In Illinois, jailhouse informants have played a role in 17 wrongful convictions that have cost taxpayers $88.4 million in civil lawsuit payments and state compensation. SB 1830 would prevent wrongful convictions by requiring pre-trial reliability hearings and disclosure of specific impeachment evidence to the defense before jailhouse informant testimony is admissible in homicide, sexual, assault and arson cases. These safeguards were already implemented for capitol cases by a 2003 law, which became moot when the death penalty was abolished in Illinois in 2011.

Scott Reader, a columnist at the Journal Standard, questions the governor’s veto, particularly his explanation that jailhouse informant protections already exist for death penalty cases when Illinois hasn’t had a death penalty for seven years.

The legislature is anticipated to return and take up SB 1830 for a veto override in the fall. 

posted by Michelle Feldman


Prisoners have a First Amendment right not to snitch

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The Second Circuit has decided an extraordinarily important case, Burns v. Martuscello, in which the court held that prison officials violated an inmate’s First Amendment rights when they tried to coerce him into being an informant.  Writing that “compelled speech presents a unique affront to personal dignity,” the court decided that prison officials acted unconstitutionally when they placed Burns in solitary confinement in retaliation for his refusal to snitch.

The court noted that snitching in prison can be especially dangerous, thus heightening prisoners’ First Amendment interest in refraining from speech.  The court also reasoned that forcing prisoners to snitch is analogous to forcing a person on the street to talk to the police–something the Fourth Amendment prohibits.  Finally, and importantly, the court rejected the government’s claim that forcing inmates to snitch is necessary to maintain safe prison conditions. “Coercing inmates to serve as informants,” wrote the court, “is, at best, an exaggerated response to prison concerns.”

This case has broad potential implications. Prisoners are often required to debrief or inform in order to avoid discipline or harsher conditions of confinement.  Prisoners, moreover, typically have reduced constitutional rights as compared to non-prisoners.  If inmates cannot be pressured to snitch, many other people including suspects, arrestees, criminal defendants, and immigrants, all of whom are often pressured to inform, may have new constitutional protections.

The Marshall Project covers the case here: Is There a Right Not to Snitch?