• SNITCHING: Criminal Informants and the Erosion of American Justice
  • U.S. Attorney General's Guidelines on the FBI's Use of Confidential Human Sources
  • Sarah Stillman, The Throwaways, The New Yorker (2012) (article on the use of juvenile informants)

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Monday, August 9, 2010

The limited value of police policies on informant use

The police department in Jacksonville, North Carolina is facing criticism for using a fugitive as an informant in a drug sting. The sting resulted in 394 felony counts charged against 45 suspects, though these numbers paint a misleading picture of the sting's success. First, the charges have resulted mainly in sentences of probation and in little jail time. Moreover, at least two of those targeted in the sting have claimed that the informant fabricated drug buys. The trial of one ended in a hung jury, and police are concerned about the credibility of the informant in light of his fugitive status. Finally, the informant, who is accused of shaking a five-month-old child so hard that she suffered a broken arm, cracked ribcage, and retinal bleeding, has yet to face any possible punishment for an offense allegedly committed almost two years ago.

These problems are neither surprising nor rare. Others (including Professor Natapoff and myself) have explored the issues: that drug informants often do little to get criminals off the street, instead churning cases targeting minor offenders; that they fabricate evidence leading to false convictions; and that the alliance between police and criminals like the informant in this case cast the police in a negative light and call into question their standing to enforce the criminal laws.

But what is interesting about this case is that the use of this informant was in flagrant violation of Jacksonville Police Department policy, which says that no individuals wanted on a warrant can be used as a confidential informant. The policy no doubt is meant to prevent the problems here, as fugitives are less credible as witnesses, have a significant incentive to fabricate evidence, and diminish police credibility. And the need for such a policy is real: an individual with an outstanding warrant is a prime target of an officer seeking an informant because the potential sentence hanging over the individual's head is excellent leverage to recruit her.

But, as this case shows, the existence of a policy is at best only a laudable first step toward responsible informant use, and one that inevitably fails unless the policy is enforceable, compliance with it is transparent, and police are held accountable for violations.

On the enforceability front, courts have repeatedly declined to allow injured civilians (including informants) to enforce violations of police procedures. This means that police, like wolves guarding the chicken coop, enforce their own rules. In most cases, then, breaches of policy are enforced only when public outcry requires it, as in the Rachel Hoffman case in Tallahassee. And in this case the JPD administration provides little hope that its policies will be enforced, as the JPD's deputy chief has said that an investigation will occur only "if a violation of policy is brought to [the JPD's] attention."

This raises the issue of transparency. Typically neither internal police guidelines nor the specifics of any informant case are made public. (In Tulsa, Oklahoma, for instance, the police department grudgingly released its policy on informant use while making clear that the policy did not fall within Oklahoma sunshine law. Moreover, though Tulsa's policies are reportedly "grounded in national standards," the former police chief acknowledged that policies are worthless if they're not enforced.) Here, the JPD refuses to release the name of the informant. And when the informant finally was arraigned, he received an unsecured bond before the detective investigating the outstanding charges even had an opportunity to speak to him. With proceedings cloaked in secrecy, it is nearly impossible for there to be independent investigation of potential past wrongdoing or for current violations to be uncovered.

Finally, most police procedures lack accountability. The procedures themselves generally do not include any punishment for violators, and courts are loathe to undermine a criminal case based solely on violations of police procedures. As a result, police have very little incentive to abide by their own procedures when, as they inevitably do, police perceive the policies as making their jobs more difficult. And the incentives to violate procedures are significant: police often are assessed and rewarded based on how many arrests they make, regardless of how those arrests are made. (In this case, one of the officers involved in the sting was promoted, though it is unclear if there is any causal connection between the sting and the promotion.)

These problems are not unique to informants, of course. The vast expanse of police and prosecutorial discretion is a frequently-explored phenomenon, and this is just one of the many areas where that discretion, which depends entirely on the assurance of state agents that they can be trusted to govern themselves, is problematic.

Nevertheless, the case in Jacksonville goes to show that while pushing for policy changes is a worthwhile effort, it can only be a first step toward more effective, fair, and just informant use. Until these policies are enforceable, compliance with them is transparent, and their violation results in real punishment, little genuine change in police handling of informants can be expected.