NYU Law School's Center for Human Rights and Global Justice has just released this report: Targeted and Entrapped: Manufacturing the "Homegrown Threat" in the United States. The report examines three recent high profile domestic terrorism cases, in all of which informants played a central role, and argues that the use of compensated informants is creating the perception of a threat in U.S. Muslim communities where none may have existed before. From the executive summary:
Since September 11, 2001, the U.S. government has targeted Muslims in the United States by sending paid, untrained informants into mosques and Muslim communities. This practice has led to the prosecution of more than 200 individuals in terrorism-related cases. The government has touted these cases as successes in the so-called war against terrorism. However, in recent years, former Federal Bureau of Investigation (FBI) agents, local lawmakers, the media, the public, and community-based groups have begun questioning the legitimacy and efficacy of this practice, alleging that--in many instances--this type of policing, and the resulting prosecutions, constitute entrapment.
In the cases this Report examines, the government's informants held themselves out as Muslims and looked in particular to incite other Muslims to commit acts of violence. The government's informants introduced and aggressively pushed ideas about violent jihad and, moreover, actually encouraged the defendants to believe it was their duty to take action against the United States. In two of the three cases, the government relied on the defendants' vulnerabilities--poverty and youth, for example--in its inducement methods. In all three cases, the government selected or encouraged the proposed locations that the defendants would later be accused of argeting. In all three cases, the government also provided the defendants with, or encouraged the defendants to acquire, material evidence, such as weaponry or violent videos, which would later be used to convict them.
Justice Strategies and the ACLU have issued a highly critical report entitled: Numbers Game: The Vicious Cycle of Incarceration in Mississippi's Criminal Justice System. The report identifies three main problems in Mississippi: harsh sentencing policies, the misuse of multi-jurisdictional drug task forces, and the heavy recruitment and use of drug informants. The informant section analyzes numerous issues, including the widespread use of snitches in low income African American communities throughout Mississippi, and the social harm that this causes. For example:
A similar pattern and practice of using neighbors and friends as confidential informants is occurring in Flora, Mississippi, a tiny town of some 1,500 residents in Madison County--an area where complaints of racial profiling are common. Local police frequently threaten low-level drug users and sellers, coercing them to "snitch" on their friends.
Josephine, is a grandmother and lifelong Flora resident. According to her, Flora has never experienced a significant drug problem.... Josephine maintains that there are at least three known informants among the young people in Flora, and that many residents are frustrated with the local police because they are forcing young people to turn each other in. With considerable nostalgia, she recalls that people in Flora used to be very neighborly; they would talk about their families, joys and troubles, but now, "everybody don't fool with each other anymore. People keeping to themselves and not inviting each other in their homes." She says that people are afraid to go out at night. "Most young guys are scared to walk the streets at night because the cops mess with them." When her 20-year-old nephew does go out at night, she fears for his safety, not because of other Flora residents, but because of law enforcement agents: "Cops know how to scare you into snitching."
From another Mississippi resident:
Some community residents view the use of CIs as not only tolerating criminal activity, but also enabling it--greatly diminishing the legitimacy of policing in their eyes. Another Mississippi mother, Sandra, says that her son's informer was allowed to continue his own criminal enterprise while turning in her son:The report concludes by proposing numerous reforms, including the establishment of an informant registry to keep track of people who are trying to work off their own criminal charges, a requirement that law enforcement report crimes committed by their informants, and a ban on using juvenile snitches.
"They use people [who] already [have] a felony conviction and should be in prison, and give them 'paper time.' The week before they arrested my son, they search and arrest this guy. He had weed, crack and money on him. They gave it back to him and let him go on 'paper time' for snitching on my son."
Gary T. Marx is professor emeritus of sociology, Massachusetts Institute of Technology. He is author of the seminal book Undercover: Police Surveillance in America (1989) and he has written extensively on the new forms of surveillance, social control across borders, and comparative law. His book review of "Snitching," forthcoming in Theoretical Criminology, is here. Here's the beginning of the review:
It is rare to encounter a book that nurtures the passion for justice while also remaining respectful of standards of scholarship. Law professor Alexandra Natapoff has done that in a splendidly informative and lively book. The topic of criminal informants (which need not be the same as informants reporting on criminals) has never been has so comprehensively, disturbingly and clearly analyzed -- not only should criminal justice practitioners and students be required to read it, they should be tested on it.
Among the most significant and least studied aspects of American criminal justice is how the government obtains evidence. Apart from what can be learned from direct observation, searches, forensics or accidents, authorities in a democracy are forever sentenced to making deals, rewards, threats, manipulation, covert surveillance, undercover operations and tips. Negotiation, compromise and voluntary compliance play a much larger role than in more authoritarian societies lacking our expansive notion of procedural rights. Coercion, deception and actions off the books are just beneath the veneer and support the table of our high civic ideals -- ironically partly because of them.
Filed in Book events/mediaPermalink
Jailhouse informant Robert Plunkett reported to police that he had learned that attorney John Garcia was willing to deliver drugs into the Merced County jail. The police set up a sting, and Garcia accepted a bag containing methamphetamines from Plunkett for delivery to his (Garcia's) incarcerated client. As a result of this transaction, Garcia's law office was searched and he was arrested, although not prosecuted. He then sued the police for violation of his Fourth Amendment rights, in effect arguing that based on Plunkett's information they didn't have enough evidence to arrest him or get a warrant. Story here. In Garcia v. County of Merced, the 9th Circuit denied Garcia's claim, reaffirming the principle that information from informants, if properly corroborated and checked, can constitute probable cause for arrest or for a warrant. In this case, "there were at least seven to eight items of corroboration that confirm what [Plunkett reported]."
The opinion is additionally interesting because it was authored by Judge Stephen Trott, who has been an outspoken critic of the use of criminal informants and lectures prosecutors around the country on the perils of informant use. See Judge Stephen Trott, Outline of lecture to prosecutors on the use of informants. The opinion notes that jailhouse snitches are unreliable, that "the word of a jailhouse informant  is suspect and ordinarily requires corroboration before it can be accepted as probable cause," and that "jaihouse informants can always be presumed to be looking for consideration in return for the information." In this case, however, the Court found that the police disclosed enough information to the judge who issued the warrant to put the judge on notice of Plunkett's "suspect and shaky character." That disclosure, in combination with the substantial corroboration, was enough for the warrant.
Last year I posted about a Maryland case, Griffin v. State, in which a MySpace comment was used against a defendant: MySpace anti-snitch comment treated as threat. The evidence consisted of a printout of a MySpace page allegedly belonging to the defendant's girlfriend, which read: "Just remember, snitches get stitches!! U know who u are." Last week, the Maryland Court of Appeals reversed that ruling, holding that it was improper to permit the prosecution to use the MySpace comment as evidence in light of how easy it is for other users to manipulate and post information on MySpace. Here's an excerpt from Colin Miller at EvidenceProf Blog about the case:
Griffin is really a terrific opinion whether or not you agree with the court's conclusion. If you want a detailed description of what courts across the country have done so far with regard to the authentication of electronically stored information on social networking sites, you need look no further than the court's opinion.
So, why did the court find that the prosecution failed to authenticate the MySpace page properly? The court agreed with the defendant
'that the trial judge abused his discretion in admitting the MySpace evidence pursuant to Rule 5-901(b)(4), because the picture of Ms. Barber, coupled with her birth date and location, were not sufficient "distinctive characteristics" on a MySpace profile to authenticate its printout, given the prospect that someone other than Ms. Barber could have not only created the site, but also posted the "snitches get stitches" comment. The potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that Ms. Barber was its creator and the author of the "snitches get stitches" language.'
Filed in Informant LawPermalink
Legislation, Litigation, Reports & Scholarship
Comprehensive resource site for lawyers, journalists, government officials & the public.