Here's an article I wrote for Prison Legal News entitled "Secret Justice: Criminal Informants and America's Underground Legal System." The article is a brief overview of many of the themes I cover in the book--here's the first paragraph:
Although it is almost invisible to the public, the use of criminal informants is everywhere in the U.S. justice system. From street corners to jails to courthouses to prisons, every year the government negotiates thousands of deals with criminal offenders in which suspects can avoid arrest or punishment in exchange for information. These deals typically take place off-the-record, subject to few rules and little oversight. While criminal informants-sometimes referred to as "snitches"-can be important investigative tools, using them has some serious costs: informants often continue to commit crimes, while the information they provide is infamously unreliable. Taken together, these facts make snitching an important and problematic aspect of the way America does justice.
In this month's edition of the Monthly Review, Staughton Lynd offers this meditation on the famous Rosenbergs: Is There Anything More to Say about the Rosenberg Case? Lynd, himself a well-known anti-Vietnam War activist, quaker, historian, and attorney, argues that the Rosenbergs were executed in 1953 not so much for being part of a Russian spy ring, but because they--unlike other members of the ring--refused to give information to the govenment. From the article:
We should ask, "Why were the Rosenbergs punished so much more severely than others whose activities were comparable to theirs?" I believe Haynes and Klehr provide the answer. Each individual who "confessed" was required to do one thing more. He or she was also asked to identify ("finger") other individuals engaged in espionage. Thus, "Fuchs' confession in Britain led the FBI to Harry Gold in the United States. Gold's confession in turn...quickly led the FBI to Sgt. David Greenglass. Greenglass confessed to espionage and also implicated his wife, Ruth, and his brother-in-law, Julius Rosenberg." But, at this point, the FBI inquiry hit a snag, or what Haynes and Klehr call "stonewalling" by the Rosenbergs and Morton Sobell. That is to say, these three persons refused to snitch. ...
I offer the opinion that the Rosenbergs' execution was really all about their refusal to snitch. On the basis of a fifteen-year acquaintance with death row prisoners in Ohio, I can state that the refusal to snitch is one of the highest values of long-term prisoners. It is the essence of the "convict code." Refusal to snitch earns a prisoner recognition as a "solid convict." In contrast, the government wanted an unbroken chain of informants who would inform against their colleagues. When confronted by individuals who refused to confess or "deal," the government decided to send a message to all other potential informants by killing the Rosenbergs.
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In previous blogs I have highlighted some of the perceptions that exist around law enforcement officers and their involvement in managing informants and I have made suggestions that the underlying system that has evolved contributes to many of the problems that arise. Law enforcement officers will always be in the frontline of protecting society. It is therefore incumbent upon society to set out the standards of behaviour that are expected and to provide law enforcement with the tools to do the job correctly. There seems little point in criticising a law enforcement officer for making errors with regard to behaviour when the legislators and politicians have failed to provide clarity. It is futile to criticise prosecutors for using legislation that has been put in place because citizens have asked politicians to put such legislation in place. It is somewhat hypocritical of the public to demand greater accountability of law enforcement and then not provide funding to purchase software that would help ensure greater accountability. And, if there is to be any resolution of such matters there needs to be open, frank and objective discussion about what is going wrong, why it is going wrong and what can be done to change it. My first suggestion and a subject which I have mentioned in previous blogs is that of clarity around terminology and it is to that which I return now. This is about getting the basics correct.
I have previously highlighted those individuals who are recruited and managed by law enforcement with the intention of providing evidence in legal proceedings. These should not be referred to as informants but as witnesses. I would suggest that the individuals to which the term informant could be applied fall into one of two categories. The first category is that of registered informant. (NYPD have a effective and comprehensive definition) This person will most often be someone involved in crime or from a high crime area who gives law enforcement information about ongoing criminality on a regular basis over an identified period of time. They may, or may not, take part in criminal acts on behalf of the law enforcement agency. The key point about these individuals is that they are registered with the law enforcement agency and there is a record to evidential standards of every action they do on behalf of the agency, every intelligence report they produce, every cent they have been paid and that their behaviour is authorised by a supervisor within the agency following comprehensive risk assessment. Such a process protects the informant, the law enforcement officer and the general public.
The second category of those to be considered as informants are those citizens who give information to law enforcement in the expectation that no one will know they have given such information. This information is likely to be given on a one off or ad-hoc basis. Information coming from such people is likely to include reports of suspicious activity and crime-stoppers type tips. The agency needs to keep a record of who supplies what information. Again such a record protects the person giving the information, the officer receiving the information and the general public. Such a system addresses many of the concerns raised in the stop snitching debate and is particularly well suited to community orientated policing. If the person is not a registered informant or a witness then by default they fall into this category.
While my suggestions here may appear somewhat simplistic they work. Obviously there needs to be significant guidance put in place for each category and a number of subcategories are likely to be required. However, building systems around such basic tenets ensures that appropriate resources can be directed to manage the relevant risks that surround this type of work. Obviously, there is likely to be less risk when a pastor is giving information about drug dealing in her community as opposed to someone who is involved in an organised crime group giving similar information. Hence, different risk control measures should be applied. Furthermore, if a witness is receiving significant benefit for their testimony as opposed to an ordinary witness, then it is in the interests of justice that the jury are aware of those benefits. This not does not mean the witness should be stigmatised with the label of informant, as such an action is prejudicial to the prosecution and does not serve justice.
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