Snitching

Criminal Informant Law, Policy, and Research

Police

Revealing “Snitch City” series in the Boston Globe

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The Boston Globe has been running a deep dive Spotlight series into the corrupt, violent, and routinely illegal use of informants in New Bedford, Massachusetts. The ongoing multipart series is accompanied by a podcast, and the project highlights some of the worst and most persistent features of the informant market. Here is the series description from the Globe:

In a nation addicted to drugs, local police are addicted to informants. This new Spotlight series begins in an American city that, like so many others, is enmeshed in the war on drugs. Here, police have been empowered to use confidential informants to take down dealers by almost any means necessary. They have invented CIs, had sex with informants, and used them to settle scores, protect drug dealers, and break the law.

Headlines include the following eye-popping stories:

The Globe investigation is a sobering reminder that, among other things, without independent media scrutiny we would know very little about the worst features of the enormous world of informant use. The criminal process has a high tolerance for secrecy in this arena, with numerous mechanisms through which law enforcement can evade disclosure and accountability. “Snitch City” thus offers a rare and valuable peak behind the curtain.

The death of teenager LeBron Gaither

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This new episode of Radley Balko’s podcast on The Intercept, Collateral Damage: Blown Cover, takes a hard look at the reckless ways that law enforcement endangers the lives of its most vulnerable informants. The episode is devoted to the heartbreaking story of LeBron Gaither, an 18-year-old informant who was tortured and killed after Kentucky police carelessly revealed his identity. For more information about the lawsuit filed by Gaither’s grandmother, see this post: Police found liable for young informant’s death.

The podcast also features Sarah Stillman, author of the influential New Yorker article “The Throwaways,” in which she exposed the widespread use and abuse of child informants. That article helped inspire a 60 Minutes special episode, “Confidential Informants,” about college students pressured to work as informants. For more stories about the use of young informants, see these posts.

Using children as informants

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More civil cases in which families have sued police for harm to their children who were working as informants. The cases are collected in this blog post from Professor Jeff Welty, Professor of Public Law & Government at the University of North Carolina; the post also includes several North Carolina police department policies on using children as informants. For more on the topic, see these previous posts.

10th Circuit case could shake the foundations of snitching

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In Mendenhall v. Denver, the plaintiff is making an argument about search warrants that could completely change the informant landscape. Police got a warrant to search Michael Mendenhall’s house based on hearsay, which is to say, by repeating something that somebody else said. Mendenhall is represented by the Institute for Justice, and his attorneys are arguing that the warrant violated the plain text of the Fourth Amendment which requires that all warrants be “supported by oath or affirmation.” Since the officer swearing out the warrant had no firsthand knowledge, the argument goes, he could not properly swear to the facts in his affidavit. For this argument to prevail, the Supreme Court would have to overturn Jones v. United States, 362 U.S. 257 (1960), which permitted the issuance of a warrant based on hearsay allegations from an informant. If Mendenhall prevails, police could no longer rely on assertions from confidential informants in order to get warrants. Since the majority of warrants, and the vast majority of drug warrants, rely on informants, this would be a massive change in the law.

Here is a Reason Magazine piece on the case; amicus briefs from law professors and civil rights attorneys can be found on the IFJ page. And here is a law review article by Professor Laurent Sacharoff that explains the historical argument: “The Broken Fourth Amendment Oath,” 74 Stanford Law Review 603 (2022).

Refusing to snitch

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The Marshall Project has published this remarkable story about George Hall who refused to serve as a jailhouse informant against David Wood. David Wood is on death row and is scheduled to be executed next month in Texas.

Hall, Wood, and two other men were all incarcerated together back in 1990. According to Hall, Hall and the two other men were offered deals by Texas law enforcement to testify falsely against Wood. Hall refused; the other men agreed and helped convict Wood. From the story:

“As Hall tells it, several El Paso detectives took the three men, without handcuffs, to a hamburger joint and a police station, seating them in a room with photographs of the victims, a large coffee pot, cigarettes and snacks. They handed the men case files with crime scene photos and interview notes with other witnesses, Hall said. “David Wood is our suspect,” he recalls the detectives saying. “It’d be best if you tell us something, because we can’t let this guy walk.” Plus, there was reward money for people who helped them.”

Stories like Hall’s are rare for a number of reasons. The government only rewards inculpatory evidence — evidence that builds the state’s cases and makes defendants look guilty — not evidence that might help exonerate a defendant. Conversely, defendants can’t offer leniency at all, and offering money or a reward looks like witness tampering. Which means that all the incentives run in one direction, towards snitching for the prosecution and away from contradicting the government’s story. When someone like Hall refuses to snitch, moreover, they will not be called as a witness by the government, which means the defense might never learn about them. And coming forward like Hall did can be risky for people facing their own criminal cases: they run the risk of law enforcement disfavor or even retaliation. (This reality sits in considerable tension with the Second Circuit’s holding that prisoners have a First Amendment right against being forced to act as an informant.)

For all these kinds of reasons, when people refuse to snitch, we are unlikely to learn about it, which makes this particular story even more revealing. Story here: He Refused to Become a Jailhouse Snitch. Can He Stop David Wood’s Execution?