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NYTimes story covering the prosecution of an alleged terrorist who was set up by a paid government informant: The ‘Herald Square Bomber’ Who Wasn’t. Nearly 50 percent of international terrorism cases have involved informants, in a process that has drawn criticism for decades. From the article:

“In [terrorism] trials, the government presented evidence gathered by paid civilian informants who latched onto low-income, vulnerable and mentally challenged individuals, urged them toward a plot and, in several cases, even offered money and supplies to carry out bombings.”

See here for previous posts on terror-related informant policies.

The new law, signed in April, requires stronger disclosures, tracking of jailhouse informants, and notifications to victims if an informant who harmed them receives leniency.  The law is here, and the Innocence Project wrote about the problem here.  Prior post here.

“The Post-Gazette has uncovered instances in which informants used to build federal cases were convicted murderers, liars or double agents working with both law enforcement and the targets. One informant with a violent past, used in a DEA case that ended in acquittal, wasn’t put through the federal review process.

The results have included the indictment and incarceration of people whose lives were turned upside-down prior to their exonerations. Only nine people have been fully acquitted in federal court cases brought in Pittsburgh since 2009, but four of those not guilty verdicts involved shaky informants. Two of those exonerated defendants first spent years behind bars.”

From the affidavits, the Post-Gazette constructed a picture of how often different federal agencies used informants in that jurisdiction.  On average, approximately 40 percent of the affidavits relied on informants, but agencies diverged. For example, an article entitled “Gathering and Analyzing Data,” the Post-Gazette explained:

“Confidential informants were much more prevalent in drug cases. Of the 94 cases led by the Drug Enforcement Administration or its task forces, 60 were built using confidential informants. Thus nearly two-thirds of the DEA’s cases were based on secret sources.  By contrast, the FBI used confidential informants in just under one-third of the 126 cases that stemmed from its affidavits. The Bureau of Alcohol, Tobacco, Firearms and Explosives used confidential informants in 13 out of 34 cases, or 38 percent, consistent with the average.”

The last in the series here: Experts offer solutions to confidential informant problems.

My student, Sam Dickhut, is writing a great paper on the Tribal Law and Order Act of 2010 that incidentally raises an interesting issue about snitching. His paper, and the Act itself, responds to a recent Amnesty International study finding that a disproportionate number of rapes (two-and-a-half times the non-native population) are perpetuated against the American Indian and Alaskan Native communities of the United States. Almost one third of the rapes are committed by non-Native American visitors on tribal lands, and these stranger rapes are disproportionately likely to be violent.

A central contributing factor, Sam argues, is the case of Oliphant v Suquamish Indian Tribe, 435 U.S. 190, 193 (1978), which holds that tribal courts do not have jurisdiction over non-Indians. Accordingly, rapes must be investigated and prosecuted by the federal government. And the government faces two, snitching-related obstacles.

The first obstacle is the difficulty of obtaining information from the white communities abutting tribal lands, given variety of racial and cultural stereotypes that are applied to the rape victims. Not only are such communities unwilling to snitch on the perpetrators of sexual crimes, they dominate the jury pools, rendering it difficult to prosecute such cases to a conviction.

The second obstacle is the historically fraught relationship between the Native population and the government. Lacking specific training to deal with the cultural norms and practices that they will encounter on tribal lands, and residing outside the community, investigators and prosecutors often lack the sort of relationship with tribal officers or members, and so cannot generate the information necessary to prosecute such cases.

The Tribal Law and Order Act proposes to solve the problem of rape prosecutions, in part by increasing the law enforcement competence of the currently underfunded and under-trained tribal officers, as well as granting tribal courts additional sentencing powers. But treating the problem as one of tribal enforcement rather than federal enforcement perpetuates the idea that this is a tribal problem, rather than a federal one.

Instead, the problem of snitching should be addressed head on as the Indian Law Commission, which was created by the Act, conducts hearings over the next three years in order to develop proposals for further legislation. Alexandra Natapoff’s work on snitching, especially when read against the background of David Harris’s “Good Cops,” suggests the problem is not communities’ refusal to cooperate with the police, but the police’s lack of interest or training in dealing with specific communities in a consistently engaged and thoroughgoing manner. The Tribal Law and Order Act provides an amazing opportunity for the federal government, through the FBI and the U.S. Attorney’s office, to right current injustices as well as historical wrongs by engaging in the sort of community outreach to develop the sort of partnerships productive of understanding and trust in the target communities that stop snitching advocates consistently recommend. That work is often hard, and faces difficult cultural obstacles. But it produces the sort of policing that is the mark of the good cop, and in this case could have a major social and cultural impact.

Snitching Blog will be on break for the next two weeks