Snitching

Criminal Informant Law, Policy, and Research

Legislation

Congress to hold hearing on DEA informant program

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This Wednesday, November 30th, the House Committee on Oversight and Government Reform will hold a hearing entitled “Oversight of DEA’s Confidential Source Program.”  The announcement describes the hearing as follows:

PURPOSE:
  • The hearing will examine the recent audits and investigations conducted by the Department of Justice Office of Inspector General (DOJ OIG) of the Drug Enforcement Administration’s (DEA) Confidential Source (CS) Program. 
  • Topics include the current state of DEA’s oversight and management of its CS program, changes it has made to the program, and DEA’s response to DOJ OIG’s recommendations.  
BACKGROUND:

  • The DEA maintains an extensive and recently expanding CS program. DOJ OIG found deficiencies in DEA’s oversight and management of this vast network of confidential sources dating back to 2005.  
  • These CSs included employees from Amtrak, the Transportation Security Administration (TSA), private bus companies, and employees in the parcel delivery industry being paid for information.
  • A September 2016 DOJ OIG audit found that from 2010 to 2015, DEA had 18,000 active CSs, with over 9,000 CSs receiving approximately $237 million in payments from the DEA.  
  • Much of the activity identified by DOJ OIG occurred under the previous DEA Administrator Leonhart who resigned in April 2015 after Chairman Chaffetz, Ranking Member Cummings, and other members of the Oversight Committee released a statement expressing “no confidence” in her ability to manage the DEA.
The U.S. Department of Justice OIG audit can be found in this previous post.

10th anniversary of Kathryn Johnston’s informant-related death

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In 2006, Atlanta police shot and killed Kathryn Johnston, a 92-year-old grandmother. Her death–which involved the botched and illegal use of numerous informants–triggered a national inquiry into informant use, a Congressional hearing, and several criminal prosecutions.  This CNN retrospective looks back at the story and the reforms that Atlanta has instituted since then.  Here is a link to the original 2007 congressional hearing.

Reliability hearings in Washington state

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The Washington State House and Senate are considering bills that would institute pretrial reliability hearings in which judges would evaluate informant witnesses for unreliability before those informants could testify in front of juries. The House version would mandate the hearings; the Senate version gives judges discretion over whether to hold them or not.  News coverage from the Associated Press here.

Reliability hearings are one of many important tools available to combat unreliable informants and avoid wrongful conviction, including corroboration requirements, stronger and earlier discovery requirements, jury instructions, and limits on when and how informants can be used.  The Washington legislation thus represents an important first step.  It is motivated in part by the wrongful convictions of three young Washington residents several years ago who were convicted based on the testimony of a highly unreliable compensated informant.

U.S. DOJ criticizes DEA informant program

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The Office of the Inspector General (OIG) of the U.S. Department of Justice has just released this report, Audit of the Drug Enforcement Administration’s Confidential Source Policies and Oversight of Higher-Risk Confidential Sources.

This is an important report for a number of reasons.  The press and the public have had trouble getting basic information from the DEA about its informant policies and usage: this audit fills in some of those informational gaps. The audit identifies numerous troubling practices within the DEA and offers new insights into the kinds of risks that are routinely run by federal officials who rely on criminal informants.  The audit also strengthens the case for a pending bill in Congress entitled “The Confidential Informant Accountability Act,” H.R. 2985, introduced by Rep. Stephen Lynch (D-MA). That bill would require the DEA, along with the FBI and other federal investigative agencies, to report to Congress the serious crimes committed by their informants, as well as their payments and rewards.  As described in greater detail below, the OIG found that the DEA was seriously deficient in documenting and controlling the crimes committed by its informants.

Highlights of the Report:

1. The DEA resisted the audit.  As the report put it, “the DEA has seriously impeded the OIG’s audit process, which has affected our ability to conduct a timely, full, and effective review of the DEA’s Confidential Source Program. The DEA made attempts to prohibit the OIG’s observation of confidential source file reviews and delayed, for months at a time, the provision of confidential source information and documentation.”  The audit is therefore ongoing.  This resistance to oversight is consistent with the general culture of secrecy surrounding informant use, in which law enforcement is often resistant to disclosing its practices, even to its own direct supervisors. See, for example, this post.

2. The DEA permits its informants to deal drugs and commit other crimes without adequate supervision or oversight.  The U.S. DOJ has guidelines for its investigative agencies that require certain procedures before an informant can be authorized to commit a crime.  The DOJ Guidelines, which are here, distinguish between Tier One and Tier Two Otherwise Illegal Activity (OIA).  Tier One OIA includes very serious offenses and requires authorization from agency supervisors and a prosecutor.

The DEA does not follow these guidelines.  For example, the DEA explicitly excludes “the purchase of drugs or other undercover activities that are routinely performed by DEA Agents and CSs [confidential sources] during the normal course of their duties” from the kinds of “sensitive activities” that require supervisory approval within the DEA.  The only drug transactions for which the DEA rules require a prosecutor’s approval are those involving amounts under U.S. Sentencing Guidelines 2D1.1(c)(1), which are the highest amounts documented in the guidelines, and include 90 KG or more of heroin, 450 KG or more of cocaine; 25.2 KG or more of cocaine base (crack); 90 KG or more of PCP; and 45 KG or more of Methamphetamine.  Amounts less than this do not require prosecutorial approval.  The report concludes:

“We believe the DEA’s policies do not adequately address the concerns and risks involved in authorizing confidential sources to conduct and participate in OIA and do not correspond to the AG Guidelines’ requirements in place to mitigate these risks….DEA confidential sources could engage in illegal activity that has not been adequately considered, or become involved in additional illegal activities beyond those that have been considered with the mistaken belief that they are doing so with the authorization of the DEA. Further, an ill-considered or unclear decision to authorize a confidential source to engage in OIA may create significant difficulties in prosecuting the source or co-conspirators on charges related to the source’s activities.”

3. The DEA rarely reviews the relationships between its agents and their long-term informants (over six years), and when they do, the review is cursory.  This is historically and famously problematic: the DOJ Guidelines were themselves a direct response to the FBI’s disastrous long-term relationships with its mafia informants.

4. The DEA pays some of its informants death and disability benefits when they are injured or killed in connection with their informant activities.

Orange County jailhouse informant scandal goes national

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National attention is finally turning to the Orange County fiasco.  The judge has kicked the entire District Attorney’s Office off the case, largely because so many prosecutors and sheriffs lied under oath to protect their secret records and unconstitutional practices.  Dean Erwin Chemerinsky has called for an independent inquiry and major reforms; Al Jazeera has revealed secret recordings of the informant’s negotiation with sheriffs; Slate’s Dahlia Lithwick says the scandal “shows eerie parallels” to other jailhouse informant debacles. Speaking to Slate, Laura Fernandez at Yale Law School concludes that the “massive cover up by both law enforcement and prosecutors…has effectively turned the criminal justice system on its head.”

Hopefully all this attention will finally persuade lawmakers that jailhouse informants are a public policy worth regulating properly at the front end, instead of waiting for some intrepid defense attorney or journalist to uncover a disaster.  For jurisdictions that have recently concluded as much, see this post.