In my previous blog I opened an argument that the main problem with the management of informants is 'the system' that has evolved around their management. I use the term 'system' loosely as there is not one US system for managing informants. Different agencies use different languages have and have different processes despite attempts by both the Department of Justice and International Chiefs of Police Association, among others, to try and standardise terminology and methodology.
While inconsistency in methods and terminology mean that systems are different it doesn't actually mean they are wrong. True ...but there are too many cases that give rise for concern that it is only by burying ones head in the sand that anyone can try and defend the status quo. Citizens have died, the innocent have gone to jail and the guilty have walked free and good cops have gone bad all because of poor informant management practices.
Let's get to the basics. Firstly the terms 'snitch' 'confidential informant' 'human source' (FBI), 'cooperating witness' and many other derivatives are all used interchangeably. They are not the same. Just as a farmer keeps a horse, a sheep, and a cow for agricultural purposes, the way he manages these animals and what he uses them for is different. It is exactly the same with citizens who are providing law enforcement with information. Categories need to be clearly identified and then the individuals managed accordingly. If we try and milk a horse or sheer a cow, things are going to get messy and the products won’t be what we were hoping for!
How we identify what category a person falls into is most easily worked by answering the simple question: In what way are the law enforcement agency’s intending this person to act? Everything else then follows from that. The first category to look at is the person who is intended to provide evidence.
A significant amount of the concerns that are articulated about 'snitching' revolve around persons who give evidence to obtain a lessening of their own sentence (for example 5K motions). These individuals are not informants they are witnesses. The two roles are different using the terms interchangeably or the terms snitch and/or confidential informant for both roles confuses all involved (arguably most damagingly, the jury). If it is the intention of the law enforcement agency is to use a person to give evidence against another that person is a witness. The reason the terms 'snitch or informant' are used relates to the individuals motive and/or perceived circumstances not the act that they are doing. Using such terms is based in human prejudice. Law enforcement wants this person to provide evidence to a court. Once such a decision is made everything that the law enforcement agency does needs to be done to ensure that the evidence is presented to the court in a manner that the jury can make an objective decision as to whether or not that person’s evidence is credible or not. This means rigorous documentation of each and every contact with that witness from the time they are first spoken to up to the time they give evidence and including details of any subsequent benefit they may receive post trial. All documentation must be of evidential standard. US law enforcement needs to devise a term for this type of person be it cooperating witness, convicted witness, prison witness or whatever but it should include the word witness for that is what they are. National legislation and policy should be drawn up to direct the evidentiary and management criteria surrounding such individuals. Whether or not the evidence of such a person requires corroboration is not for me to dictate but for the US legislature to decide. However, given the huge incentive for such a person to lie, such corroboration may be prudent.
Filed in Guest bloggerPermalink
This is true. You can't trust anyone. Totally! All the time! Now try and live your life trusting no one. The simple truth is we make judgements on a daily basis on who we should trust and to what extent. And when it comes to the police, we do trust them - to keep us safe - but that trust is conditional and trust must be continually earned. In this piece we will take an in-depth look at some of the issues affecting the credibility of law enforcement including that which songwriter the late Harry Chapin referred to as "...a sociological phenomena that afflicts the men in blue in America..."
People do not trust the police for many reasons. Policing is, for want of a better term, 'a sexy business' and by this I mean that the majority of people are attracted to it. It is interesting, exciting; it involves people at their best and worst. It makes for great stories and people love stories. Policing makes for great television and great movies and so people are heavily exposed to all its facets. And at the end of the day cops are just people with all the strengths and weaknesses of the rest of us. The main difference between the police and others being is that as a group police officers are under continuous scrutiny. Their faults and failings are continually the subject of media reporting. What happens in law enforcement is we take ordinary men and woman and ask them to do an extremely difficult job and then criticise them when they do it wrong. So before the legislatures, lawyers and academics get too excited about what I will say about law enforcement officers be aware you are complicit in what goes wrong and your time in the spotlight approaches.
Society wants to be safe and more importantly to feel safe. No more prevalent is this than within American culture. More so than most other Western societies, the US public is subjected to an inordinate amount of fear messages. Citizens want to know that the bad guys are being caught. This puts pressure on elected representatives, who put pressure on police chiefs, who put pressure on police commanders who put pressure on police officers -- get results. (The bad stuff always moves downward!) Whether anyone involved or not including the police officers themselves they are under huge pressure to get results. If they don’t get results they will be criticised. Their promotion prospects will be curtailed, they may get moved to a less desirable posting or the pay may be reduced. The pressure comes on to get results - at any cost.
Furthermore, police officers get tired of "the bad guys" getting away with murder, robberies and destroying lives through the sale of drugs. They get fed up with the inability of the judicial system to deal with these individuals and get annoyed when highly paid lawyers get acquittals based on what they perceive as ‘technicalities’. Is there a temptation to bend the rules? You bet there is.
And if you want another hundred reasons why law enforcement officers make a mess of managing informants I can give you them but maybe the question that needs greater consideration is “Why does the system allow cops to behave in inappropriate ways?” Stephen Covey, author of The Seven Habits of Highly Effective People, writes: "If you put good people in bad systems you get bad results."
So while it may be easy to blame the cops, and in certain circumstances some cops may well merit blame, the major problem facing US society in relation to managing informants is not those directly involved it is the system that has evolved and it is that system that needs fundamental change.
Filed in Guest bloggerPermalink
Since we have a guest from the UK, this story seemed particularly timely. A 'stop snitching' pamphlet was distributed in a largely black London housing project after a murder. The event has triggered a debate very similar to the debate in the U.S. over police-community relations. From the BBC story: Peckham murder 'snitch' leaflet: what has changed?:
"No one likes a rat," [the pamphlets] stated. "Remember the police are not your friend. Don't be deceived by promises of anonymity, protection and rewards. They will say and do anything to make you snitch, then destroy your life." It concluded: "Be smart. Don't snitch." The flyers were linked to a website, entitled 'Stop Snitching'. It is unclear whether the site is linked to a campaign of the same name launched in 2004, in the troubled US city of Baltimore. ...
Claudia Webbe, chairwoman of the public panel set up to scrutinise [the police's] work, said: "People on the estate were very angry and defiant after the leaflets - but for some it added to the fear. It tapped into suspicions some have long believed." One Southwark councillor has claimed that the leaflets actually had the effect of increasing the number of calls to police - something the Metropolitan Police is yet to comment on. And Ms Webbe thinks the estate's reaction since the leafleting campaign is symptomatic of how relationships between police and the black community have improved. She said: "In 1998 not a single person would have spoken to police after a murder like this."
Washington Times journalist Jim McElhatton has written another revealing story about the violent dynamics of snitching: this one on seven-time killer Oscar Veal who cooperated against the violent Washington DC drug gang that hired him. In exchange, Veal escaped the death penalty and was sentenced to 25 years, half of which he has already served. Story here: A killer deal: be a star witness, escape execution. Based on thousands of pages of newly obtained documents, the Times story offers a rare window into the secretive dynamics of such arrangements. From the story:
Veal, 39, shot and killed seven people. A contract killer for a large drug ring and murder-for-hire operation a decade ago, he cooperated with prosecutors and became a star witness for the government. Kevin Gray, the lead defendant in one case in which Veal testified, alone was convicted in Washington of taking part in a record 19 murders.
But there is a price to be paid for such testimony. Veal could have faced the death penalty. Instead, he has completed about half of a 25-year prison term -- less than four years for each of the execution-style murders he committed. At his 2005 sentencing, which has not been previously reported, a relative of one victim said she will pray until her dying breath that Veal never sees the streets again. And attorneys for the men he testified against portrayed him as a snitch willing to lie in court to save himself.
If we are to start to understand what is wrong with the way in which informants are managed we have to first start to examine the whole concept of using informants and how we, as people, are likely to perceive their use. Being an informant is intrinsically linked to the act of betraying the group (tribe) to which the informant belongs: de facto the individual causes harm to their group for the benefit of another group. From a human 'survival' perspective this act is destructive though to fully comprehend this statement we must return to the days when we lived in tribal groupings. Despite the fact that this maybe many years ago we are still to a greater extent conditioned by the way in which people lived then. If one of our tribe did not fully contribute to the group or worse 'betrayed' the tribe, then the tribe and all in it were less likely to survive; hence, the need for loyalty in the tribe and the ostracising of those who were disloyal. This perception that betrayal of any sort is wrong has been reinforced by the fact that majority of people in modern western democracies are familiar with the story of the betrayal of Jesus to the Romans by Judas. Given the significant number of people that look to the Bible for moral guidance, it can hardly be thought strange that society finds betrayal abhorrent. [As an aside, an alternative perspective on this story with real relevance to this whole debate Judas was merely a law abiding citizen who gave information on a dangerous subversive who was trying to undermine the legitimate Roman government. Truth is out there somewhere but perception is everything.] Furthermore, we are all taught well by our peers in kindergarten: "You don’t snitch to the teacher."
Society in general is based on shared values and trust; snitching undermines this and leads to the perception that it is damaging to the fabric of our society. Finally, add to that the fact that the very nature of informing requires deceit at so many levels and we start to understand why snitching starts out with a “bad rap.” All that said, regardless of how prevalent these beliefs may be they are all up for debate!
So if we start that as a baseline many consider using informants wrong, then we must ask what do law enforcement do to alter this perception? Law enforcement agencies in the US undoubtedly are more proactive than many of their counterparts in other jurisdictions about highlighting the use of informants in solving crimes. There is not a day goes past that there are not numerous press reports of confidential informants helping to bring perpetrators to justice. So why do the public concerns remain? Perhaps many take a somewhat simplistic view - you can’t trust the police! Policing of a community is done through consent. The police are an arm of government and have a right to take away our liberty and our lives. We worry about the powers they have. We fear for what they will do and for our safety. We worry when they are secretive. Combine this with inherent senses of right and wrong and of justice and there remains a distinctly uncomfortable feeling about the use of informants.
So why do law enforcement seem to hell-bent on doing things wrong? The answer is they are not. The vast majority of law enforcement officers are good people doing an extremely difficult job. They are prepared to put their life on the line so you and I can sleep safely in our beds, get up and go safely to our work and come home and enjoy time with our families. The rub here is that they are 'people' with all the attributes that you and I have. When you criticise a law enforcement officer over some informant case regardless of how tragic a case it is they will in all likelihood perceive it as an attack on law enforcement in general and they will adopt a defensive position. They will rationalise what has happened, become dismissive of many of the concerns and antagonistic to those raising the issues. In discussions with many law enforcement officers these and many other cases, there are a raft of different interpretations of the events with some being deeply critical of the officers or agencies involved to those defending those involved. All the points raised have validity. These law enforcement officers, from patrol officers to Chiefs have all expressed the desire to manage informants in a professional manner. So where is it going wrong?
At this juncture it is perhaps worth it for all to pause and consider where we may be. Just as post 9/11 the way in which intelligence was collected and managed was subjected to a huge amount of scrutiny, and the subsequent changes that were required, then now is perhaps an appropriate time for all with a genuine interest in this debate on informant management to take an objective look at how informants are managed within US law enforcement and how that process could be improved. The first step is recognising there is a problem. Kathryn Johnston, Rachel Hoffman, allegations of corruption in places like Philadelphia and Tulsa and the concerns over the use of confidential informants in Mosques in California are not isolated cases. They are symptoms off a much wider national malaise. US law enforcement needs to use informants but there needs to be changes in how they do it. This is not problem that can be resolved by single law enforcement agencies. It is a national problem that needs addressed at a national level and not just by law enforcement.
Filed in Guest bloggerPermalink
In an historic and rare event, a Texas judge last month began a hearing on the constitutionality of the death penalty, entertaining arguments that the system is so prone to erroneous conviction that it might violate the Eighth Amendment's ban on cruel and unusual punishment. The defense called numerous experts from around the country (including me) to testify on various aspects of the death penalty including: error rates, the use of unreliable eyewitness testimony, junk science and forensic evidence, informants, discovery, death-qualified juries, and race. Story and witness list here: Hearing on Constitutionality of Texas Death Penalty. At the government's request, the Texas Court of Criminal Appeals stayed the hearing after two days and the parties are now briefing matters. For additional information, see Fountain's Pen blog: Appeals court orders stay in death penalty hearing.
Filed in InnocencePermalink
More Texas news. The Harris County jail has a new "Crime Stoppers" program aimed at inmates who call in information, offering rewards of up to $5,000. Houston Chronicle story here: Jailhouse informers: Inmates can offer tips, get paid. County Sheriff Adrian Garcia explains the idea:
"When people are coming into the jail environment, we recognize they're vulnerable," Garcia said. "They're caught and being processed. We wanted to take advantage of that psychology. If they are the only one caught and they've been involved in a crime someone else planned, it may be a good idea for them to speak up."
One critical difference between [jailhouse snitches] and others who call Crime Stoppers, though: While an arrest may be made or criminal charges filed based on testimony from a jailhouse informant, in 2009 the Texas Legislature, in a bill authored by state Sen. Juan "Chuy" Hinojosa, required corroboration for jailhouse snitches' testimony in order to secure a conviction. Another difference: Jail calls are never anonymous.
The oddest aspect of the new program is that it completely ignores the well-documented tendency of jailhouse snitches to lie in exchange for benefits. From the Los Angeles Grand Jury investigation to the Canadian Kaufman inquiry, the Illinois Commission on the death penalty, and the California Commission on the Fair Administration of Justice report, numerous official studies have documented the pervasive use of snitches in U.S. jails and the potent dangers of wrongful conviction that flow from doing so. See for example, The Snitch System Report by Northwestern University Law School, concluding that criminal snitches constitute the "leading cause of wrongful convictions in U.S. capital cases." It is thus hard to see how Crime Stoppers' executive director Katherine Cabannis can say that "she believes the program will be successful because it solicits crime information from an untapped population" or how it can be that District Attorney Pat Lykos "sees no potential downsides." Indeed, jailhouse snitch testimony is so infamously unreliable that it compelled Texas to enact its corroboration requirement, which I applauded here: Texas requires corroboration for jailhouse snitches. While the corroboration requirement should mitigate some of the dangers of Harris County's new reward program, in this day and age government officials should think long and hard before creating new incentives for jailhouse informants.
Filed in Jailhouse InformantsPermalink
Coming from 'across the pond' I feel it a great honour to be able to share my thoughts with you with regard to what has become commonly referred to as 'snitching' and thank Alexandra for the opportunity. In some respects, it may seem strange that a person who has spent a considerable part of their life involved in promoting the use of informants ends up writing on a blog that has, in the past been, and probably will be again, highly critical of such tactics being used by law enforcement. So let me explain how it came about. Having been lucky enough to spend a considerable part of my law enforcement career involved in all aspects of managing informants I gravitated, initially, to training others in that role and then to researching how law enforcement could manage informants in a more effective manner. In carrying out any research in regard to the management of informants, what becomes readily apparent is that whilst there exists significant differences in the various criminal justice systems found across the western world, the problems encountered in the management of informants rarely differ. So it is hardly surprising that someone got around to writing a book about it... which led me to Alexandra and her blog.
For many people there is significant ambiguity about the definition of 'snitching'. In the opening gambit of this snitching blog the following is used:
"Snitching = when police or prosecutors offer lenience to criminal suspects in exchange for information or cooperation"
I will start with where I perceive US law enforcement and indeed US intelligence agencies are with regard to managing what are referred to here as 'snitches' and in other circles as 'confidential informants', 'human sources, 'rats', 'phinks' or in military and intelligence circles as 'humint'. I will highlight some of the problems I see and make suggestions as to where I believe law enforcement agencies need to go in order to address many of the concerns raised by the citizens that law enforcement seeks to serve.
I will begin with a couple of baseline statements. Firstly, the terminology I will use throughout is that of 'confidential informant'. It is one that is widely used and accepted within law enforcement and within the criminal justice system. That said, there are problems with the breadth of situations that people are in, that the term is expected to embrace. Those problems I will address shortly. The second statement I will make is that law enforcement cannot succeed in the prevention and investigation of crime, particularly with regard to organised crime and terrorism, without the use of confidential informants. No matter how distasteful some people may find that statement (and I am willing to debate it whenever and with whomever) that is a cost to protect the society in which we live.
Filed in Guest bloggerPermalink
I'm pleased to introduce January's guest blogger John Buckley from the United Kingdom. John brings a comparative perspective, as the UK and US handle informants quite differently. He also brings his expertise as a former law enforcement officer with decades of experience handling confidential informants. Here is his bio:
John Buckley is a former UK law enforcement officer with over 28 years policing experience in counter terrorism and intelligence gathering. He is the author of two books. "The Human Source Management System: The use of psychology in the management of human intelligence sources." and "Invest Now or Pay Later: The management of risk in covert law enforcement." He is the co author of the United Kingdom Home Office Research Paper "Human Source Management -- A better way to manage human intelligence sources." He has been involved in numerous working groups on the management of confidential sources including that working on UK national policy. He has acted as a consultant in developing purpose built software for managing covert law enforcement operations and trained officers from across the world in all aspects of managing informants. He is a regular speaker at law enforcement conferences. He can be contacted at www.hsmtraining.com
Filed in Guest bloggerPermalink
Senator Bob McCaslin (R-Spokane Valley) has introduced Senate Bill 5004 which would vastly improve the way Washington creates and uses criminal informants: An Act Relating to disclosure and regulation of criminal informant evidence and testimony. The effort was triggered by this case -- More on the Spokane convictions --in which three young men were convicted based on the testimony of a criminal informant. Even after an acccomplice recanted, saying that the three were set up, the boys still were denied a new trial. The family of one of the three, Paul Statler, has been vigorously advocating for legislative change -- hence SB 5004. Inlander Magazine story here: Reasonable Doubt. Full disclosure: I provided Sen. McCaslin's office with information in support of this bill, and I am strongly in favor of the effort.
This bill is an excellent example of the kinds of legislative change that we can expect more of, as legislatures and the public learn more about the risks of informant use. It is also a moving example of how families of young defendants are influencing the debate over informant policy -- see Florida's Rachel's Law offers some protection to informants, and Recruiting new informants. This is such an important phenomenon that Snitching.org has created a new subject matter area devoted to it: Families & Youth. More to come.
Legislation, Litigation, Reports & Scholarship
Comprehensive resource site for lawyers, journalists, government officials & the public.