Remember Jack Abramoff, the corrupt lobbyist who defrauded Indian tribes of millions and used the money to bribe members of Congress and White House officials? In 2008 he was sentenced to four years of incarceration for multiple offenses, decades less than he might have received, in exchange for his cooperation. Now Abramoff is headed back to prison for . . . corrupt lobbying. Abramoff joins a long line of repeat offender informants who commit serious crimes, cooperate in exchange for leniency, and then continue committing those very same offenses. It is one of the costs of running the criminal system as a marketplace in which guilt and information can be so easily and routinely traded: we send the message that informants can earn impunity, and that they can work off even the most serious crimes if they are useful enough to the government. I worried about the Abramoff case back in 2009 here. As I wrote back then, “this is the perennial dilemma with snitches: it is very hard to know whether we are actually getting more security and justice by letting them off the hook, or whether we too easily forgive serious wrongdoing in the name of cooperation.”
Japan is introducing American-style plea bargaining in which defendants can trade information about others in exchange for leniency. Some are concerned about the risks of snitching in general, and of wrongful convictions in particular. The law is more limited than the U.S. version, and only permits certain kinds of deals and only for certain kinds of crimes. From the Japan Times:
“Unlike the U.S. plea bargaining system, admitting to a crime does not warrant a deal with prosecutors in Japan. The new system, introduced in a revision to the criminal procedure law, allows suspects in such crimes as bribery, embezzlement, tax fraud and drug smuggling to negotiate with prosecutors. The bargaining only applies to crimes listed in the law, with murder and assault off-limits.”
Bloomberg recently explored the State Department’s Narcotics Reward Program which offers bounties for information on high-ranking drug traffickers: America’s Multimillion-Dollar Bounty Program Just for Drug Lords. As always, the program accepts the risk of rewarding and protecting serious, violent criminals in exchange for information about other potentially more serious, violent criminals. As the article notes, “[c]ritics of the government’s rewards programs warn that huge cash bounties increase cartel violence and encourage corruption among U.S. law enforcement personnel. But the program’s success is hard to dismiss, its proponents contend.” Other agencies, including the IRS and the SEC, offer large bounties to informants as well.
President Trump has attacked “flipping” and cooperation, saying that “it should almost be illegal,” according to the New York Times. Reacting to his lawyer Michael Cohen’s plea deal, Trump says “I know all about flipping. For 30, 40 years I have been watching flippers. . . . I have seen it many times. I have had many friends involved in this stuff.”
The irony is that Trump is attacking snitching for its greatest strength: it enables law enforcement to investigate and prosecute the wealthy, the powerful, and the politically insulated. Think of the Enron prosecution, or the dismantling of the mafia, neither of which could have happened without cooperation deals. Also ironically, Trump is criticizing informant use in its least problematic incarnation. When Trump’s “many friends” become defendants and informants, they will be well represented and informed about their rights and options, while their cooperation deals will be recorded, vetted, and publicly scrutinized. Most informants, and most defendants faced with snitch testimony, will get none of these protections. It is precisely here in the white collar and high profile political context that cooperation is best regulated, most accountable and transparent, and thus least problematic.
To be sure, there are many reasons to agree that snitching “should almost be illegal.” It leads to wrongful convictions; it tolerates the crimes committed by informants; it coerces the most vulnerable and rewards the most culpable. It promotes government secrecy, rule breaking, and sometimes corruption. But its potential to hold powerful people accountable is its best feature.
The Intercept has published the FBI’s 2015 Confidential Human Source Policy Guide. It includes policies on recruitment, payments, and international informants: The FBI Gives Itself A Lot of Rope to Pull In Informants. From the article: