• 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)

Recent Blog Posts

Monday, January 10, 2011

Guest blogger John Buckley

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"

While such a definition addresses many concerns that arise from the use of confidential informants, inherent in the definition are a number of problems. Firstly, 'snitching' is a slang term and while it certainly captures many of the emotions associated with the practice it does not bring with it the objectivity that is required to address the issues it raises. It is a term that offends many people directly involved in the associated acts including both citizens and law enforcement officers. Secondly, I would argue that in using slang we professionals, who should strive to improve the criminal justice system, stoop to the language and level of those in the criminal fraternity who would seek to undermine our society. Thirdly, the definition is not broad enough, if all we seek to address is the issue of leniency being offered to criminal suspects then we are not addressing many of the other issues associated with the management of confidential informants. Having said all that, the blog title certainly gets people interested and hopefully thinking which is probably exactly what intended to do and as such is certainly a step along the correct path.

So, let me set out where my intentions are to go over the next month I will spend with you.

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.

The comments that I offer here stem from the hard won experience gained by many of the law enforcement agencies I have had the privilege to work with over the years. The mistakes that are being made now within the criminal justice system are rarely new. Unfortunately, they have been made before and often many times before. Later, we will explore reasons why such mistakes continue to me made.

Returning to definitions the first problem surrounds that of the meaning of the term 'confidential informant'. One of the fundamental problems is the lack of sufficient standardisation with regard to use of the term and what the term is intended to incorporate. The Federal Bureau of Investigation (FBI) has chosen, in its 2006 guidelines, to use the term 'Confidential Human Source', a term that is not used by the majority of other law enforcement agencies. While that term has many positive attributes, it is at variance with what is widely used by the majority of other practitioners within the criminal justice system. The very nature of modern law enforcement requires inter-agency cooperation but in this case the lead federal agency is at variance with its partners. Some may argue that this is a semantic debate, but if informants are to be managed properly it needs to begin with clarity of language. Following on from this, the breadth of individuals and circumstances to which the term is applied incorporates too many widely differing circumstances for there to be any real control or accountability. If informants are to be managed properly, in a way that addresses genuine public concerns then there needs to be some degree of categorisation within that term. Some law enforcement agencies have attempted to categorise different types of informant but this most often done on an ad hoc agency by agency basis.

The circumstances in which the law enforcement agency (LEA) obtains information from a citizen dictates the level of risk that is associated with that individual and the steps necessary to manage that risk in an effective and accountable manner. At present the term confidential informant is applied to circumstances as varied as a head teacher giving information on a pupil involved in drug dealing at a school, to a member of the Mafia reporting on organised crime, and to the situation where a convicted prisoner gives evidence against a cell-mate. Each of these circumstances raises issues that need to be managed in different ways. Neither justice, nor the effective deployment of limited law enforcement resources, are served by attempting to deal with such individuals in a similar way.

To begin law enforcement needs to identify broad categories into which they can place an individual and then manage that individual according to an agreed and document set of standards. There are three categories that command an adequate starting place all of which will fall within the broader understanding of the established term 'confidential informant'. [The wording used here is only suggested to explain the concepts it is up to the relevant Federal or State authorities to agree and document the terms to be used.]

1. 'Registered Human Source.' This term refers to a person with whom the LEA enters into a relationship in order to obtain information over and identified period and under specified set of circumstances. This relationship is authorised by someone in a management position within the LEA and all aspects of that relationship are documented.

2. 'Prison Witness.' This term refers to a person serving a prison sentence with whom the agency enters into a relationship with the intention that the person will give evidence against another person. Such a person is often referred to at the minute as a 'jailhouse snitch.'

3. 'Member of the public.' This term refers to all other persons who do not fall within either Category 1 or 2 and includes any person passing information to the LEA in the expectation that their identity remains confidential (i.e. the intention is they will not be used as a witness).

Each of these categories will be explored in more depth later when it will become apparent how many of the current problems faced in the USA with regard to informants might have been avoided. Of course categorising individuals is not the solution but it is a start. I welcome your comments of any nature.