Resources

  • 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

Thursday, August 30, 2018

Illinois Governor Makes Disappointing Move on Jailhouse Informant Law

Last month, Illinois Governor Bruce Rauner vetoed Senate Bill 1830, a protection against wrongful convictions based on unreliable jailhouse informant testimony, despite the bill passing the legislature with bipartisan support. There will likely be an opportunity for the legislature to override the veto in November.

In Illinois, jailhouse informants have played a role in 17 wrongful convictions that have cost taxpayers $88.4 million in civil lawsuit payments and state compensation. SB 1830 would prevent wrongful convictions by requiring pre-trial reliability hearings and disclosure of specific impeachment evidence to the defense before jailhouse informant testimony is admissible in homicide, sexual, assault and arson cases. These safeguards were already implemented for capitol cases by a 2003 law, which became moot when the death penalty was abolished in Illinois in 2011.

Scott Reader, a columnist at the Journal Standard, questions the governor's veto, particularly his explanation that jailhouse informant protections already exist for death penalty cases when Illinois hasn't had a death penalty for seven years.

The legislature is anticipated to return and take up SB 1830 for a veto override in the fall. 

posted by Michelle Feldman


Thursday, August 23, 2018

President Trump gets snitching backwards

President Trump has attacked "flipping" and cooperation, saying that "it should almost be illegal," according to the New York Times.  Reacting to his lawyer Michael Cohen's plea deal, Trump says “I know all about flipping. For 30, 40 years I have been watching flippers. . . . I have seen it many times. I have had many friends involved in this stuff.”

The irony is that Trump is attacking snitching for its greatest strength:  it enables law enforcement to investigate and prosecute the wealthy, the powerful, and the politically insulated.  Think of the Enron prosecution, or the dismantling of the mafia, neither of which could have happened without cooperation deals.  Also ironically, Trump is criticizing informant use in its least problematic incarnation. When Trump's "many friends" become defendants and informants, they will be well represented and informed about their rights and options, while their cooperation deals will be recorded, vetted, and publicly scrutinized.  Most informants, and most defendants faced with snitch testimony, will get none of these protections.  It is precisely here in the white collar and high profile political context that cooperation is best regulated, most accountable and transparent, and thus least problematic.

To be sure, there are many reasons to agree that snitching "should almost be illegal."  It leads to wrongful convictions; it tolerates the crimes committed by informants; it coerces the most vulnerable and rewards the most culpable.  It promotes government secrecy, rule breaking, and sometimes corruption.  But its potential to hold powerful people accountable is its best feature.


Tuesday, August 7, 2018

Prisoners have a First Amendment right not to snitch

The Second Circuit has decided an extraordinarily important case, Burns v. Martuscello, in which the court held that prison officials violated an inmate's First Amendment rights when they tried to coerce him into being an informant.  Writing that "compelled speech presents a unique affront to personal dignity," the court decided that prison officials acted unconstitutionally when they placed Burns in solitary confinement in retaliation for his refusal to snitch.

The court noted that snitching in prison can be especially dangerous, thus heightening prisoners' First Amendment interest in refraining from speech.  The court also reasoned that forcing prisoners to snitch is analogous to forcing a person on the street to talk to the police--something the Fourth Amendment prohibits.  Finally, and importantly, the court rejected the government's claim that forcing inmates to snitch is necessary to maintain safe prison conditions. "Coercing inmates to serve as informants," wrote the court, "is, at best, an exaggerated response to prison concerns."

This case has broad potential implications. Prisoners are often required to debrief or inform in order to avoid discipline or harsher conditions of confinement.  Prisoners, moreover, typically have reduced constitutional rights as compared to non-prisoners.  If inmates cannot be pressured to snitch, many other people including suspects, arrestees, criminal defendants, and immigrants, all of whom are often pressured to inform, may have new constitutional protections.

The Marshall Project covers the case here: Is There a Right Not to Snitch?

Monday, August 6, 2018

Coercion of Intelligence Informants

Diala Shamas, staff attorney at the Center for Constitutional Rights, has just published this informative article in the Brooklyn Law Review: A Nation of Informants: Reigning In Post-9/11 Coercion of Intelligence Informants.  Here is the abstract:

"This article challenges the adequacy of the existing legal and regulatory framework governing informant recruitment and coercion practices to protect fundamental rights, informed by the Muslim-American experience. It looks at the growing law enforcement practice of recruiting informants among Muslim-American communities for intelligence gathering purposes. Although the coercion of law-abiding individuals to provide information to federal law enforcement agencies for intelligence gathering purposes implicates significant rights, it is left unregulated. Existing, albeit limited, restraints on the government agents’ ability to coerce individuals to provide information either assume a criminal context, or are driven by historical concerns over FBI corruption. As the U.S. government engages in widespread surveillance of Muslim-American communities, it relies heavily on recruiting members of those communities as informants. These individuals are targeted for their community ties, or their religious or linguistic knowledge—and not because of any nexus they might have to criminal activity. This has led FBI agents to search for coercive levers outside of the criminal process and that have far fewer procedural protections—namely, immigration and watch-listing authorities. Thus, existing protections that have evolved to prevent civil rights violations in the criminal informant context—limited as those protections may be—do not apply. In light of these expanding authorities and the significant rights at stake, this article makes several proposals that would regulate the recruitment of intelligence informants."

Tuesday, July 3, 2018

Snitches snitching on snitches

I write critically about criminal informants, but it bears remembering how they enabled the FBI to break the mafia.  In June, mob boss "Cadillac Frank" Salemme was convicted of ordering the murder of a witness.  Key witnesses against Salemme included Stephen "Rifleman" Flemmi, infamous killer informant in his own right who avoided the death penalty by testifying against Salemme and others. Salemme himself had been living under federal witness protection for having testified for the government over a decade ago.  As one lawyer commented about the old mafia leadership, "Everybody's been burned to a crisp here by informants."


Whether it's good public policy to cut deals with murderers in order to go after other murderers is a subject of long debate. At least some in Congress didn't think so--see this report: Everything Secret Degenerates: the FBI's Use of Murderers as Informants.  It is now a violation of Department of Justice guidelines for the FBI to permit one of its informants to commit a violent crime, but violent criminals get leniency all the time in exchange for cooperation.

Thursday, June 21, 2018

ALEC promotes informant legislative reform

Better known for its advocacy on behalf of business and economic growth, the American Legislative Exchange Council (ALEC) has issued new model Jailhouse Informant Regulations.  They require state's attorneys to keep track of informants who provide information or testimony, to record all benefits promised or given to informants, and to provide full disclosure of an informant's criminal record, their participation in other cases, and all benefits.  Of particular note is how comprehensively the model regulations define the term "benefit":

  "Benefit' means any plea bargain, bail consideration, reduction or modification of sentence, or any other leniency, immunity, financial payment, reward, or amelioration of current or future conditions of incarceration in return for, or in connection with, the informant’s participation in any information-gathering activity, investigation, or operation, or in return for, or in connection with, the informant’s testimony in the criminal proceeding in which the prosecutor intends to call him or her as a witness."

The definition recognizes that informant benefits come in many shapes and sizes, from leniency to money to improved conditions of confinement.   The definition also recognizes that informants can receive benefits for information-gathering activities even if they are never called to testify.  A strong definition is important because it captures the reality that informants are motivated by a wide range of potential rewards which can affect their behavior and reliability.

ALEC's model regulations are consistent with reforms in other states such as Texas and Florida that are starting to require greater transparency and disclosure regarding informants.  They are a great start for other states considering reform.  They are also a great sign that the risks of informant use are now firmly part of the mainstream legislative conversation.

From the ALEC website: "The American Legislative Exchange Council is America’s largest nonpartisan, voluntary membership organization of state legislators dedicated to the principles of limited government, free markets and federalism."

Thursday, June 14, 2018

Jailhouse informants used threats to get confessions

This piece from Ted Rohrlich, who is now writing for Injustice Watch, chronicles the use of two Mexican Mafia informants in Southern California who sometimes threatened their cellmates to get them to confess.  The informants, whose work came to light as part of the Orange County snitch scandal, were paid over $300,000 over six years by law enforcement in multiple counties.  They also received numerous breaks and perks.  From the story "Miranda ‘loophole’: CA police use gang enforcers to win cellmate confessions":

  "[C]onfessions did not always flow, and in several cases, court records show, the enforcers-turned-informants—like other Southern California jailhouse informants before them—resorted to death threats to provoke suspects to talk. They claimed suspects were on “green light” lists of inmates that Mexican Mafia leaders had ordered killed because they were believed to have broken a Mexican Mafia rule. But if they confessed—admitting the killing of which they were suspected but denying that they had broken the rule—the enforcers-turned informants could go to bat for them and have them removed from the lists."

The constitutional law here is interesting.  In Illinois v Perkins, the Supreme Court held that the government can deploy jailhouse informants against incarcerated inmates to get confessions without Miranda warnings, as long as those inmates have not yet been charged with a crime.  But the Court also held in Arizona v. Fulminante that the use of threats to extort confessions can render those confessions involuntary in violation of due process.

This story also deserves attention because of who wrote it--no one knows jailhouse snitches like Ted Rohrlich does.  He was the Los Angeles Times reporter who broke a series of stories in the late 1980s about the rampant use of informants in the LA County jail.  That series helped trigger a ground breaking 1990 grand jury investigation which remains one of the most important sources for insights about jailhouse informant use. 

Wednesday, May 23, 2018

Illinois legislature passes new informant reform

By Michelle Feldman

In April, the Illinois legislature passed new legislation that would require pre-trial reliability hearings and specific disclosure requirements before jailhouse informant testimony is admissible in the most serious criminal cases. Now Senate Bill 1830 is awaiting action by the governor.

Illinois has been on the forefront of safeguarding against wrongful convictions stemming from unreliable jailhouse informant testimony. Based on recommendations from former Illinois Governor George Ryan’s Commission on Capital Punishment, the state passed a law in 2003 requiring pre-trial reliability hearings and specific disclosure requirements before jailhouse informant testimony was admissible in capital cases, which became moot when the death penalty was abolished in Illinois in 2011. SB 1830 would apply the same safeguards in murder, sexual assault and arson cases. Read more here from NPR.

Welcome legislative blogger Michelle Feldman

I am happy to announce that Michelle Feldman is joining the blog as co-curator of the legislation section.  Feldman is the Legislative Strategist at the Innocence Project and has been involved in numerous informant reform efforts across the country.  She is highly knowledgeable and will bring expertise and up-to-date insight to the blog.  We are lucky to have her!

Wednesday, May 16, 2018

Nebraska considered jailhouse informant reform

Earlier this year, Nebraska introduced legislation that would have enhanced protections against unreliable jailhouse informants, including reliability hearings, enhanced disclosure requirements, and mechanisms to keep track of the government's use of such informants.  The text of the bill (which is currently on hold) is here; story in the Lincoln Journal Star is here

Saturday, May 5, 2018

The developing science of informant cognition

Behavioral psychologists have been studying the informant phenomenon, especially the thorny question of why jurors believe unreliable informants even when they know that the informants have strong incentives to fabricate evidence.  Some of those studies can be found here in the Resources & Scholarship section.

A group of researchers recently published this study finding that information from an informant can affect other witnesses in a case. Specifically, the study found that eyewitnesses who identified suspects in a line-up actually changed their identifications after learning that a jailhouse informant had implicated a different suspect.  Here is the abstract:

"Prior research has shown that primary confession evidence can alter eyewitnesses’ identifications and self-reported confidence. The present study investigated whether secondary confession evidence from a jailhouse informant could have the same effect. Participants (N = 368) watched a video of an armed robbery and made an identification decision from a photo lineup. Except for those in the no-feedback conditions, all participants then read that certain lineup members either confessed to the crime, denied involvement, or were implicated by a jailhouse informant. Jailhouse informant testimony implicating the identified lineup member led participants to have significantly higher confidence in their identification. In contrast, jailhouse informant testimony that implicated a lineup member other than the identified led participants to have significantly lower confidence in their initial identification, and 80% of these witnesses changed their identification. These results indicate that jailhouse informant testimony can influence eyewitnesses’ confidence and their identification decisions."

Preston M. Mote & Jeffrey S. Neuschatz & Brian H. Bornstein & Stacy A. Wetmore & Kylie N. Key, Secondary Confessions as Post-identification Feedback: How Jailhouse Informant Testimony Can Alter Eyewitnesses’ Identification Decisions, Journal of Police and Criminal Psychology (2018).

We already know that informant testimony can arise to bolster weak cases, providing corroboration for faulty forensic evidence or uncertain eyewitness identifications.  This new study suggests that in addition to bolstering, informant testimony can actually alter other witnesses' testimony. 

Test your knowledge of jailhouse snitches

The Orange County scandal has kept public attention focused on the jailhouse informant phenomenon.  This quiz published in The Marshall Project assembles some dramatic examples, and reminds us of the wide variety of benefits that informants receive, how little regulation the Supreme Court has imposed on the practice, and how easy it is for informants to collude with each other.

Tuesday, April 3, 2018

ICE marks 17-year-old informant for deportation and death

ProPublica and New York Magazine published this story about Henry, a teenager in Brentwood, Long Island, who agreed to inform on his MS-13 gang to the FBI.  The federal government then decided to deport him back to El Salvador, leaving him unprotected against the gang:  A Betrayal:  The teenager told police all about his gang, MS-13. In return, he was slated for deportation and marked for death.  From the story:

"Under normal circumstances, Henry’s choice would have been his salvation. By working with the police, he could have escaped the gang and started fresh. But not in the dawning of the Trump era, when every immigrant has become a target and local police in towns like Brentwood have become willing agents in a nationwide campaign of detention and deportation."

For other instances where the government has failed to protect immigrant informants, see these posts.

More broadly, the government often pressures or incentivizes immigrants to give information which is then used to deport them.  This law review article surveys the law, and argues that such policies are counterproductive: Amanda Frost, Can the Government Deport Immigrants Using Information it Encouraged Them to Provide?  Administrative Law Review, Vol. 2, No. 97, 2017. Here is the abstract:

"This Essay describes the legal and policy issues raised by any systematic effort to deport unauthorized immigrants based on information the government invited them to provide. Part I briefly surveys some of the major laws, regulations, and programs that encourage unauthorized immigrants to identify themselves. Part II analyzes the strengths and weaknesses of the statutory and constitutional arguments that immigrants could raise as a defense against deportations based on self-reported data. Part III explains that even if the government’s systematic use of such data to deport unauthorized immigrants is legal, doing so would be a poor policy choice for any administration, even one that seeks to drastically increase deportations. The federal government has always balanced immigration enforcement against other goals and values, such as deterring crime, protecting wages and working conditions, collecting taxes, and preventing U.S. citizen children from being separated from their parents. Deporting immigrants based on information provided in the service of these greater goals would elevate immigration enforcement over all other federal policies. Furthermore, doing so would almost immediately render these laws a dead letter, since no rational unauthorized immigrant would apply for visas or pay taxes if doing so were tantamount to self-deportation. Accordingly, any increase in removals from the use of such data is sure to be fleeting, while the damage done to immigrants’—and perhaps all citizens’—trust in the government will be permanent."

Friday, March 9, 2018

The full Orange County snitch scandal from the Huffington Post

Huffington Post offers this comprehensive retelling of the entire Orange County snitch scandal, from the first revelations all the way to Scott Dekraai's 8 life sentences, with reactions from the victims' families:  A Mass Shooting Tore Their Lives Apart. A Corruption Scandal Crushed Their Hopes For Justice.

Wednesday, February 14, 2018

Experiments on the impact of inducements

Scholars at the University of Arizona Law School have published a paper entitled "Incentives, Lies and Disclosure," 20 U. Pa. J. Con L. 33 (2018).  They conduct a number of behavioral experiments and conclude that incentivized witnesses like jailhouse informants are more likely to lie, and that even when potential jurors are told about the incentives, they still believe the witness.  Here is the abstract:  

Prosecutors can force witnesses to testify and use perjury prosecutions to hold them to the provable truth. More controversially, prosecutors also offer witnesses inducements for favorable testimony, including leniency, immunity, and even cash. This ubiquitous behavior would be illegal as witness bribery, except for a longstanding tradition of sovereigns using this power, which legal doctrine now reflects. A causal analysis shows that even if prosecutors use this power only in good faith, these inducements undermine the epistemic value of witness testimony. 

Due process requires, and legal doctrine assumes, that when such inducements are disclosed to the jury, they will discount the witness testimony accordingly. However, juries’ success in doing so is an empirical question. We conducted three randomized experiments with 1,000 human subjects in roles of witnesses and jurors deciding vignettes based on real cases. We find that incentives have large effects on witnesses, allowing prosecutors to routinely procure favorable testimony regardless of its truth. Yet, disclosure has no detectable effects on either witnesses or jurors. 

We discuss two potential reforms. First, courts could borrow from the practice with expert witnesses and use the current rules of evidence to conduct Daubert-like pretrial screening of incentivized witnesses for reliability. We frame the appropriate counterfactual question about whether the incentives would cause a witness to give the same testimony even if it were false. Second, we present the novel suggestion that prosecutors could decide whether to offer benefits to a witness based on whether she will testify to material information, but without knowing whether the information is favorable to the Government. These mechanisms may preserve the value of incentives to produce information, while minimizing false testimony.