Snitching

Criminal Informant Law, Policy, and Research

Prosecutors

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.

“The Prosecutor and the Snitch”

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In this extensive review of the infamous Cameron Todd Willingham case, the Marshall Project zeroes in on the role of the jailhouse informant, Johnny Webb, and the prosecutor who covered up his rewards.  Story here: The Prosecutor and the Snitch: Did Texas execute an innocent man?  According to the article, Webb “lied on the witness stand in return for efforts by the former prosecutor, John H. Jackson, to reduce Webb’s prison sentence for robbery and to arrange thousands of dollars in support from a wealthy Corsicana rancher. Newly uncovered letters and court files show that Jackson worked diligently to intercede for Webb after his testimony and to coordinate with the rancher, Charles S. Pearce Jr., to keep the mercurial informer in line.”

In post-trial interviews, Webb said that the prosecutor approached him about testifying:

“[H]e asked Jackson, “What’s going to be my deal?” and Jackson said, “If you help me, that robbery will disappear … even if you’re convicted now, I can get it off of you later.”  …“He says, ‘Your story doesn’t have to match exactly… He says, ‘I want you to just say he put fires in the corners. I need you to be able to say that so we can convict him, otherwise we’re going to have a murderer running our streets.’ ” …  “He [Jackson] had me believing 100 percent this dude was guilty — that’s why I testified,” Webb said. “The perks — they was willing to do anything to help me. No one has ever done that, so why wouldn’t I help them?” In fact, Webb said, Willingham “never told me nothing.”

The Economist on the power of informants

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Today The Economist published The kings of the courtroom, exploring how the use of informants helps make “American prosecutors more power than ever before.”  The article covers examples ranging from Cameron Todd Willingham, who was wrongfully executed for arson based in part on a jailhouse snitch, to the Enron prosecutions which involved over 100 potentially cooperating unindicted co-conspirators.  From the piece:

     “The same threats and incentives that push the innocent to plead guilty also drive many suspects to testify against others. Deals with “co-operating witnesses”, once rare, have grown common. In federal cases an estimated 25-30% of defendants offer some form of co-operation, and around half of those receive some credit for it. The proportion is double that in drug cases. Most federal cases are resolved using the actual or anticipated testimony of co-operating defendants. 

     Co-operator testimony often sways juries because snitches are seen as having first-hand knowledge of the pattern of criminal activity. But snitches hoping to avoid draconian jail terms may sometimes be tempted to compose rather than merely to sing.”

Orange County jailhouse snitch operation

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The District Attorney’s Office in Orange County is accused of running an unconstitutional jailhouse snitch program, much like the infamous one in Los Angeles that ended twenty years ago. See these stories from the L.A. Times , the Voice of OC, and and Orange County Register. From the Register:

[Defense attorneys] say sheriff’s deputies, including one who worked as a “handler” for jailed informants, arranged for informants to be placed next to selected inmates and lure them into making incriminating statements. Deputies and prosecutors then conspired to hide the fact the men were informants from defense attorneys and pretended their encounters were coincidental, despite the longstanding legal requirement that prosecutors turn over information that could help the defense.