The Philadelphia Inquirer’s witness intimidation series (previous post here) triggered a congressional hearing. You can read the testimonies here, including criticism of the series for exaggerating the extent of the problem. See testimony of Michael Coard. Senator Arlen Specter (D-PA) subsequently called for a law that would make witness intimidation a federal offense; witness intimidation is already a state crime. Story here. In a similar development, Rep. Elijah Cummings (D-MD) introduced the Witness Security and Protection Grant Program Act of 2009, to provide assistance to state and local witness protection programs. Press release here. More indications that the law of informant use will look very different a few years from now.
Legislation
Florida’s “Rachel’s Law” offers some protection to informants
While using criminal informants can produce bad evidence and even sometimes more crime, the snitching phenomenon is problematic in other, more complex ways. Criminal snitches themselves are often vulnerable people–they may be young, undereducated, or suffering from substance abuse or mental disabilities. Indeed, this is true more generally for the majority of people in the criminal system. When police pressure such suspects to cooperate, many people feel as if they have no choice, even if cooperating is not in their best interests. Last year, 23-year-old Rachel Hoffman became an informant in Tallahassee, Florida, trying to avoid jailtime for her possession of a small amount of drugs. Police sent her on a sting operation during which she was killed. Her death triggered an outcry and resulted in ground breaking legislation to regularize the process by which police turn people into informants. My op-ed on the new law is published here in the Daily Journal, and it describes some of the law’s features:
It creates new, basic mechanisms to protect informants and to increase police accountability. For example, Rachel’s Law requires law enforcement agencies to establish policies and procedures, including recordkeeping rules, to guide police when they turn a suspect into an informant – essential regulations that most United States police departments lack. The law also requires police to tell suspects that police cannot make promises about what charges will be filed or dropped in exchange for cooperation – only a prosecutor can do that. Police must also consider an informant’s suitability – including their age, maturity, and risk of physical harm – before entering into an agreement. This last requirement is a nod to the fact that many experts concluded that Rachel Hoffman was unsuited to the dangerous task that police assigned her.
The bottom line is that being an informant can be a very dangerous thing. Not only may the undercover work itself pose risks, but snitching can subject people to retribution and violence from all sort of sources. More on this in later posts.
Afghan airstrike triggered by single informant
The Washington Post reported yesterday that the NATO airstrike that killed numerous Afghan civilians was based on intelligence received from a single informant, in violation of command policy. According to the Post:
The decision to bomb the tankers based largely on a single human intelligence source appears to violate the spirit of a tactical directive aimed at reducing civilian casualties that was recently issued by U.S. Gen. Stanley A. McChrystal, the new commander of the NATO mission in Afghanistan. The directive states that NATO forces cannot bomb residential buildings based on a sole source of information.
The civilian equivalent to the McChrystal directive is the corroboration requirement, which comes in a variety of forms. A dozen or so states have an accomplice corroboration requirement stating that no defendant can be convicted based solely on the uncorroborated testimony of an accomplice. Texas has a relatively new and important informant corroboration requirement which prohibits the conviction of any drug defendant based solely on the testimony of a single informant. Texas promulgated its rule after the 1999 Tulia debacle, in which a single undercover narcotics agent falsely charged a large percentage of the town’s black population, many of whom were convicted without any corroborating witnesses or evidence. The California legislature has twice passed legislation that would require corroboration for jailhouse informants–Governor Schwarzenegger has vetoed it both times. And while criminal snitches have unique problems that distinguish them from military, national security, and other kinds of informants, all classes of informants share deep unreliability risks. The NATO airstrike provides yet more evidence of the value of having and honoring corroboration requirements.