March 08, 2011

Bump Bump Bump

The term 'selective abstraction' is used in psychology to describe a flawed or prejudicial way of thinking. What occurs in this type of cognitive bias is that a person takes detail out of context and believes that while everything else in context is ignored. In lay terms it is what is 'cherry-picking'. In essence it is not reading the whole story but then basing an argument on the bits you have selected. It is about pointing out everything that is wrong in the way informants are managed and refusing to see the huge amount of good that is done through their use. It is about turning a blind eye to informants that have been mismanaged, pretending these were isolated incidents, then refusing to learn from them. It is a very human failing. We don't want to see what is wrong on our side. We don't want to or can't see another perspective because maybe if we do it means acknowledging we have not been doing things as well as we could have.

When it comes to managing informants everywhere, including the US, there are problems but there is also a significant amount of good work being done and this needs to be recognised. Citizens need to realise how valuable a resource that informants are both in regard to our safety and to the criminal justice system. If a terrorist is intent in bombing our cities then let us hope that somewhere a police officer has an informant stuck in the middle of that plot. If someone is dealing drugs outside the high school where our children attend, then let us hope that a police officer has heard about it from an informant. If one of our children has become mixed up in gang violence then let us hope that a police officer hears about that before we end up burying that child. Every law abiding citizen should be encouraging others to give information about crime to law enforcement.


But all involved in the criminal justice system need to recognise that there are problems with the way in which informants are managed at present. This is not just about protecting the rights of citizens it is also about officer safety. While there are many progressive law enforcement agencies that are attempting to raise standards there is not a collective approach and as such those improvements are likely to have limited success. Is significant change possible? I believe it is and I have seen evidence of it within a number of forward thinking US law enforcement agencies. These include the major police department that has undertaken the training of every officer in relation to the risks involved in informant management, a police department involved proactively recruiting informants to address specific threats, agencies that are writing new and better policies and the sheriff's department that has altered business processes and implemented a comprehensive software solution to provide full accountability in all informant cases - officers with objectivity and vision.

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February 11, 2011

Bad language

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.

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January 31, 2011

So what is wrong with the 'System'

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.


While the US criminal justice system continues to allow confusion around terminology and role, particularly with regard to the evidentiary process, erosion of that system and loss of public confidence is inevitable. Furthermore, while such a situation continues, it helps criminals subvert communities by discouraging law abiding citizens from giving information to the police through such campaigns as that of "Stop Snitching".
In subsequent blogs we will look at the two other categories of informant and then in more general terms at what can be readily achieved to improve the overall management of informants. I welcome any comments, concerns or criticisms.

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January 20, 2011

"You can't trust cops!"

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.


We will look at how police behaviour in relation to informants erodes the trust of the public and try and identify the underlying causes. In his song 'Copper' Chapin alludes to police officers being bribed by citizens. The matter of bribery and corruption in law enforcement is a long one that rarely makes for pleasant reading. In informant management police officers deal with criminals who have access to amounts of money and lifestyles that many a law enforcement officer would envy. Policing is often not a well paid job and the temptations are there. When police officers start mixing with criminals in the grey area that is informant management the risks of corruption increase many-fold. Statistics bandied about in UK law enforcement alluded to the fact that as much as 90% of police corruption related to informant management. Remaining on a financial theme officers are often required to pay informants significant amounts of money in return for the information provided. This money is often paid with limited supervision. The temptation for officers is great. Ten for you; ten for me! It happens.

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January 14, 2011

Why does 'snitching' get such a bad rap?

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."

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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.

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January 07, 2011

Welcome to John Buckley

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

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November 03, 2010

Thanks to Eric Miller

Many thanks to Eric for all his work and insights.

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November 02, 2010

Farewell Post

This is my last post as a guest blogger. I have greatly enjoyed the opportunity to think deeply about the problems of snitching and policing. Today I want to thing about the dangers inherent in becoming an informant.

The stop snitching movement normally focuses on the cost of snitching to the community. However, two recent cases suggest that the cost of informing can be high because the police insufficiently protect their informants. In the most recent case, from Missoula, Montana, police officers reportedly pressured Colton Peterson, a mentally ill marijuana grower to "work as a 'cooperative defendant,' gathering string on potentially more serious drug dealers in the area, and in exchange police would tell prosecutors he had cooperated with the investigation." Peterson committed suicide, in part, his family claim, because of the pressure to snitch. In another case, police in Tallahassee, Florida, arrested Rachel Hoffman, a college student, "for drug possession and … g[a]ve[ her] the opportunity to avoid multiple felony charges by acting as a confidential informant for the police." She was told to purchase drugs, including cocaine, from local drug dealers, but was killed during the undercover operation.

In each case, the police appeared to be more concerned to turn non-violent marijuana users into snitches than ensure their safety. In each case, vulnerable young individuals were preyed upon by police not simply to turn states evidence, but to go back into the field as undercover informants, in Hoffman's case to buy harder drugs than she used, as well as to purchase a handgun. In each instance, the police were criticized for their lack of training in using informants.

Thanks again to Alexandra Natapoff for the opportunity to contribute to this blog.

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October 26, 2010

Video-Taping Policing

A recent snitching-related phenomenon has seen citizens secretly recording police activity. Different types of recording devices have been used, from the omnipresent mobile phone, to cameras mounted in cars or, in a recent case filed in Maryland, a motorcycle helmet. The police, however, are fighting back: in Maryland, an officer caught on a tape posted on YouTube sued the arrestee under a wiretap statute for recording the encounter that led to the arrest.

While the judge ultimately threw out the case, the Maryland police are not alone in arresting individuals who record or watch them do their job. In fact, the subtext of a recent Supreme Court case, Devenpeck vs. Alford, 543 U.S. 146 (2004) concerned a police officer who (wrongfully) arrested a suspect for tape recording the arrest.

Citizens taping cops can fit the definition of snitching, if the citizen plans to use the tape to gain lenience or drop the charge. It also fits one scenario in which subjects have proved more willing to inform on lawbreakers: when the wrongdoer is a police officer.

Why do the police react so negatively to citizen video-taping? After all, the police themselves use dashboard-mounted cameras in police cars that capture traffic stops. In part, the police do so because they believe having an accurate record of the stop will most often support the officer's version of events and undermine some of the negative attitudes towards the police.

One reason might be that citizen-sponsored videotaping (as opposed to police-sponsored taping) is a direct challenge to police control and authority. Since much of the stop-snitching phenomenon is a reaction to community perceptions of antagonistic policing or forcible policing that distances the police from the community and uses criminal informants to target low level crimes, citizen videotaping is a means of redressing the balance, by creating a record of what the police, in fact, do.

Police overreaction to citizen videotaping is best understood as a demand for a display of respect for and deference to the police. It highlights the distinction between consensual policing, of the sort that treats citizens with respect as equals, and the sort of adversarial posture that relies on criminal informants to the detriment of communication and community relations.

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October 19, 2010

Mandatory Time Off for Informants in Protective Custody?

Here's a snitching development from New South Wales, in Australia:

"The New South Wales Government says criminals who give evidence against other criminals will not automatically get reduced sentences because of the hardship they suffer in jail.

Attorney-General John Hatzistergos says they will get a discount for providing information to police but not an additional discount for the extra hardship they may suffer."

The New South Wales system gave two automatic discounts to jailhouse informants. These might be characterized as the direct and collateral benefits for informing (on the lines of direct and collateral penalties at sentencing). The direct benefit was time off for the nature and quality of the information given; the collateral benefit was to compensate them for hardships suffered through requiring protective custody. Like direct and collateral penalties, one is clearly related to the criminal's act (in the case of punishment, the crime; in the case of informing, cooperation with the government); another is regarded as regulatory in nature. In the case of punishment, there is a whole range of collateral penalties, ranging from losing the right to vote, to deportation (for eligible foreign nationals), to losing public housing, health care or welfare eligibility. In the case of informing, New South Wales treats protective custody as regulatory, and so as a matter of ensuring safety and security within prisons, rather than as an additional punishment consequent to informing.

It is unlikely that the American system would treat this type of direct/collateral benefit as legally significant. After all, the decision to reward the informant with some sentencing recommendation is well within the discretion of the prosecutor. And it's well established that decisions regarding protective custody are regulatory rather than punitive. But New South Wales apparently had a mandatory award of time off for informants for protective custody. Apparently, the state’s rethinking of that policy reflects a tough on crime attitude on the part of prosecutors that is now catching up on prison informants

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October 15, 2010

Police as Snitches

NPR’s "This American Life" recently posted an interview with NYPD police officer Adrian Schoolcraft, who secretly recorded conversations at Bedford-Stuyvesant's 81st Precinct. Schoolcraft’s recordings were originally published by the Village Voice, and became the subject of a five-part expose of the Bed-Stuy police's practices. The Schoolcraft tapes revealed the extent to which modern policing is driven by a series of arrest quotas rather than increasing the quality of life for the residents of Bedford-Stuyvesant. Perversely, the 81st Precinct's overzealous attention to the reported crime figures drove up arrests for minor crime, at the same time as driving down charges for major crimes. Put differently, the emphasis was on both the number of arrests made (busywork for the police) while at the same time proclaiming that serious crime rates were down (so reclassifying serious crimes as less severe, so as to undercut fear of crime).

Schoolcraft is a snitch: he broke the police's own stop snitching code, the Blue Line of silence. Rarely mentioned in the snitching debates is that the police have, and celebrate, their own stop snitching code, one that is expressly designed to hide illegal or quasi-illegal activities from public scrutiny. The Blue Line is in some ways disturbingly thick: it serves not only to separate but also to distance the police from the rest of the public. The Blue Line separates the police from the public by reinforcing negative police stereotypes of the people with whom they interact on a daily basis. The Blue Line distances the police from the public by turning a blind eye to forcible and arbitrary displays of authority, of the sort that, as demonstrated in the "This American Life" interview, delegitimize the police in the eyes of the public.

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October 09, 2010

Snitching Study

Dr. Rick Frei, a professor at the Community College of Philadelphia, recently conducted a study ("The Snitching Study") of over 1,500 community college students to determine whether there was widespread agreement among the students as to the definition of "snitching," and what factors would increase or decrease the likelihood that a student would "snitch" on someone they knew to have committed a crime. Professor Frei also testified before the United States Senate’s Subcommittee on Crime and Drugs as to the result of his survey.

The study confirmed that most students (82.6%) regarded "ratting on someone else to get out of a crime" as snitching; whereas less than a third (28.6%) regarded "picking a suspect out of a police lineup" as snitching. While that last figure still seems higher than optimal, it is perhaps explained by another of the survey’s findings, that "half the sample said they did not trust the police," even though 60% of respondents claimed to know a police officer personally.

Two factors in particular stood out for me. First was that "[t]he more the situation required the person to take the initiative … the more likely it was to be viewed as snitching." (Dr. Frei’s Testimony before the Subcommittee). Least likely to be viewed as snitching (16%) was '[a]nswering questions from the police if you are at the scene of the crime." Here, the student’s definition of snitching seemed to track the ACLU's distinction between acting as an informant and acting as a witness. That may have important ramifications for the manner in which the police engage in gathering evidence from people with knowledge of criminal activity.

The second striking factor from the study was that "[n]early half of all students said that they would be more likely to cooperate if there was someone besides the police to which they could report crimes." This factor appears to bolster the idea that the students surveyed tend to distrust the police, or perhaps what the police would do with the information — many students were less likely to snitch if the crime was non-violent. One obvious response would be to set up tipster hotlines that are not directly identified with the police, and which individuals reporting crimes could use to report incidents. Another way to approach the same problem may be to make such tipster hotlines anonymous. Anonymity impacts the most important factor inhibiting the students from acting as informants: almost thirty percent of students said they would be less likely to snitch if it would affect their reputation in the community. There are some worrying practical and legal problems with hotlines, however, and in particular anonymous tips, that I shall consider in a later post.

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October 03, 2010

Welcome to Professor Eric Miller

I'm so pleased to introduce guest blogger Professor Eric Miller, from St. Louis University School of Law. His scholarship focuses on policing, race, and drug enforcement--key issues in the informant policy world. Readers may be particularly interested in this piece: Role-Based Policing: Restraining Police Conduct "Outside the Legitimate Investigative Sphere," 94 Cal. L. Rev. 617 (2006), in which Professor Miller thinks about the many informal ways that police interact with suspects and citizens. He'll be with us for October.

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Guest Blogger Professor Eric J. Miller

My thanks to Alexandra Natapoff for the opportunity to contribute to this blog. Like many folks thinking about the complex range of social attitudes to snitching, I have been deeply influenced by Alexandra's writing on the subject, and in particular, her article "Snitching: The Institutional and Communal Consequences." That being said, while I share her focus on the criminal aspects of snitching, I'd also like to throw in some examples from time to time that exhibit the breadth of snitching depictions in our culture. So I'll begin with a slightly lengthy post to set out my general take on snitching.

Think, for example of the popular AMC series Mad Men, set in a Madison Avenue advertising firm during the 1960s, as an extended meditation on the disvalue of snitching. Each of the central characters has a secret, many of them criminal or quasi-criminal (at the time), and none more so than the hero of the piece, Don Draper, who is a deserter from the Army during the Korean War living under an assumed identity. Yet at pivotal moments throughout the four seasons of Mad Men, other characters have found out Don's secret and refused to snitch. I don't think it too much of a stretch to suggest that one of the major attractions of the series is precisely our interest in seeing if someone will snitch on Don. If this is a plausible characterization of Mad Men, then the show advances - and the audience’s response confirms - the value of not-snitching as a major part of our culture.

More strikingly, we tend to think that the folks who refuse to snitch - Don's ex-wife Betty Francis, Don's former boss and now partner, Bert Cooper, Don's colleague Pete Campbell, and so on - are doing the right thing. Why?


Two aspects of snitching (or informing or whistleblowing, to put it in neutral or even positive terms) are brought out by the series: first, snitching undermines trust and second, it can have very severe personal and social consequences.

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September 03, 2010

Thanks to Michael Rich

Many thanks for Michael Rich for sharing his work and insights. Additional guest bloggers coming soon.

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August 31, 2010

Thank you

As my brief tenure as a guest blogger here comes to an end, I just want to thank everyone for reading my contributions. I hope that I have been able to add in a meaningful way to discussions about how best to use, manage, protect, and recruit informants. For those of you who are interested, I hope that you will keep tabs on my profile on SSRN, where I hope soon to be posting my most recent work on informants, including an article discussing the moral status of informing and how that status should impact when and how police and prosecutors recruit and use informants and another contemplating the propriety and value of police encouraging civilians to commit immoral acts in the name of fighting crime. Until then, thank you.

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Jailhouse snitches for the defense

The Massachusetts Supreme Judicial Court recently rejected a motion by Calvin Carnes, a convicted killer, to stay his appeal pending his attempts to seek a new trial on the ground that the prosecution withheld exculpatory evidence. The evidence in question was an affidavit of a jailhouse informant who claimed that Robert Turner, one of Carnes's accomplices, confessed to the homicides. The Suffolk District Attorney's Office justified waiting eighteen months to turn over the affidavit on the ground that they had needed time to check out the informant's story, meet with Turner's attorneys, and, assuming the informant's story was true, allow Turner more time to make incriminating statements. The prosecutors further argued that the delay didn't matter because the informant was "unreliable and untrustworthy based on his extensive criminal history and the fact that he was giving inaccurate and incomplete information." The response of Ellen Zucker, Carnes's attorney, is worth quoting in full:

Prosecutors use jailhouse snitches all the time when they’re seeking prosecution of somebody. In each case, they have a profile not dissimilar to Mr. Smith, [the informant in this case]. It would be very curious if the district attorney took the standard they’re applying to Mr. Smith and applied it to every jailhouse snitch they put on the stand to try to get a conviction.

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August 30, 2010

Using informants to ID gang members (and other secondary uses of informants)

San Francisco City Attorney Dennis Herrera has filed suit seeking a civil injunction against forty-one young, African-American men who he alleges are members of two rival gangs. If granted, the injunction would impose a 10 p.m. curfew on the men and forbid them from "trespassing, selling drugs, and illegally possessing firearms, loitering, displaying gang signs, and associating in public" in a two-tenth square mile area in San Francisco. Unlike a criminal action, none of the listed individuals have a right to counsel to defend against the action and given that the injunction deals with residents of a public housing project, it is unlikely that they have the funds to hire their own. As for how the men are identified as gang members, the City Attorney's Office applied criteria also used in other states, including Florida, Tennessee, South Dakota, and New Hampshire, for IDing gang members. Under these standards, an individual must meet at least two of ten criteria to be considered a gang member, and two of the criteria are informant-related: "Subject has been identified as a gang member by a reliable informant/source," and, "Subject has been identified as a gang member by an untested informant or source with corroborative evidence." Though how the criteria are applied is murky, the plain language of these two suggests that one can be identified by law enforcement as a gang member almost entirely by informant action. Indeed, if two informants, one reliable and one untested, finger the same person as an informant, that might be enough, so long as the reliable informant is deemed "corroborative evidence" for the untested informant's identification. And, as the San Francisco case shows, the implications of such an identification are far-reaching.

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August 26, 2010

The (monetary) costs of informant use

On Wednesday, FBI Special Agent Robert Fuller testified that the US government paid informant Shahed Hussain about $100 per day and $52,000 total for his work in helping to plan a fake plot to bomb a New York City synagogue. The four individuals that he worked with are currently on trial for their roles in the plot. In Florida, Tampa police and the FBI paid an informant approximately $2,400 per month to set up twelve alleged gang members. On its own, neither rate is extraordinary. But now in the Florida case, some of the twelve accused gang members have filed suit against the FBI, the city of Tampa, and individual officers, claiming malicious prosecution and civil rights violations. The criminal cases against alleged gang members were thrown out after a state court judge found egregious misconduct by the informant in the case. Even if the civil case is unsuccessful, the cost to the taxpayers of defending it will be significant and will certainly dwarf the money originally paid to the informant. These legal costs are an inevitable part of a system that thrives on minimal oversight and self-enforced guidelines.

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August 24, 2010

Rewarding illegal informant activity -- a German example

The government often rewards informants for their illegal activity. A petty drug dealer is not prosecuted if she provides information on her supplier, information she would not have were she not involved in the drug trade. A member of an organized crime family receives leniency for his crimes in exchange for testimony against a crime boss. An informant is paid to assist in planning a terrorist attack and testify against the other planners. But few American cases parallel a recent incident in Germany:

German authorities in the state of Baden-Wuerttemberg are examining tax information offered by an informant detailing what may be illicit funds stashed in Swiss accounts, though they said they won’t buy stolen data.

This is only the latest in a string of cases (detailed here) in which insiders at banks in Switzerland, Luxembourg, and Liechtenstein have stolen bank account data and attempted to sell it. The potential buyers are the home countries of the owners of the accounts, to whom significant quantities of tax revenue are owed. In the best-known incident, Germany's foreign intelligence service paid an employee of a subsidiary of Liechtenstein's largest bank more than 4 million Euros for stolen account information on 600 Germans, many of whom were evading German tax laws. As I will attempt to explain, these cases raise interesting and important questions about the ethics and wisdom of rewarding criminal activity.

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August 20, 2010

The power of labels

There is no shortage of slang terms for informants: "weasels," "rats," "stool pigeons," and, of course, "snitches." And none imply positive things about those who assist the police. According to the Oxford English Dictionary, to "weasel" means "to escape from or extricate oneself out (of a situation, obligation, etc.), esp. dishonourably." A "rat" is "a man who is deceitful or disloyal in a romantic relationship," "a person who deserts his or her party, side, or cause," "a person who gives information, esp. of an incriminating nature, on another person to the police or other authority, an informer." And to "snitch" is "to inform upon or on a person" or "to take surreptitiously, purloin." Yet, despite the negative connotations of these slang terms, they (and particularly "snitch") are used synonymously with "informant" in journalism and academic debate, where at least the appearance of neutrality is valued. For instance, a search of news articles over the past year finds thousands of uses of the word "snitch." Many of course are found in direct quotations or a similar context, but some simply refer to informants as snitches, and thus import the negative connotation into a presumably neutral forum. A fair number of law review articles incorporate the word "snitch" in the title. And this blog is called, "Snitching Blog."

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August 17, 2010

Tailoring solutions to informant problems

The city of Atlanta has agreed to pay $4.9 million to the family of Kathryn Johnston, a 92-year-old woman who was killed by police acting on a false tip from an unregistered informant. The police then planted drugs in Johnston's home to cover up their failure to follow the law and Atlanta Police Department policy on informant use. (A fuller account of the Johnston case can be found here.) The settlement properly reflects the egregious nature of the misconduct in the case, but the more important question is whether the settlement can properly be said to bring "[o]ne of the most divisive chapters in the history of the Atlanta Police Department . . . to a close." While it certainly marks the end of what the court system can do to assuage the pain caused by Johnston's death, the settlement marks the end of the chapter only if the steps that the APD and the City of Atlanta have taken to make sure that a similar incident does not happen again are likely to be effective.

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August 12, 2010

Judged by the company you keep

Yesterday, Hal Turner, a shock jock and blogger popular with the Ku Klux Klan, Aryan Nations, and American Nazi movements, testified in his own defense at his criminal trial. Turner is charged with making threatening blog posts about Judges Posner, Bauer, and Easterbrook of the Seventh Circuit Court of Appeals, in which he suggested that the three judges deserved the same fate as District Court Judge Joan Lefkow for a decision upholding handgun bans in Chicago and a suburb. Judge Lefkow's husband and mother were murdered in 2005. Turner's defense is that the posts were not actual threats, and his testimony outlined his four-year stint as an FBI informant.

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August 09, 2010

The limited value of police policies on informant use

The police department in Jacksonville, North Carolina is facing criticism for using a fugitive as an informant in a drug sting. The sting resulted in 394 felony counts charged against 45 suspects, though these numbers paint a misleading picture of the sting's success. First, the charges have resulted mainly in sentences of probation and in little jail time. Moreover, at least two of those targeted in the sting have claimed that the informant fabricated drug buys. The trial of one ended in a hung jury, and police are concerned about the credibility of the informant in light of his fugitive status. Finally, the informant, who is accused of shaking a five-month-old child so hard that she suffered a broken arm, cracked ribcage, and retinal bleeding, has yet to face any possible punishment for an offense allegedly committed almost two years ago.

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August 04, 2010

The Wikileaks informants

On July 25, the New York Times reported on the release by Wikileaks.org of more than 92,000 U.S. military documents relating to the war in Afghanistan. While interesting from a number of angles, for our purposes the story is a tale of two informants that highlights complicated questions of loyalty and society's treatment of informants. The first informant in the story was Pfc. Bradley Manning, an Army soldier who allegedly transmitted the leaked reports to Wikileaks. While not an "informant" in the traditional sense, as he did not help the government apprehend criminals, Manning played the informant's role by revealing miscalculations and fatal mistakes, if not crimes, committed by the U.S. military in Afghanistan. The second informant was Adrian Lamo, who reported Manning's involvement in the leak to federal authorities.

What no one seems able to agree on, however, is whether Manning and Lamo are heroes, villains, or something in between.

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July 30, 2010

Rich on "stop snitching"

Before I get started, I'd like to thank Alexandra Natapoff for the opportunity to contribute to this blog. I look forward to providing a different and (hopefully) interesting take on the problems and contradictions that arise from law enforcement's dependence on, and society's complicated relationship with, criminal informants. So, let's start with one of the contradictions:

When newspaper reporters and columnists write about informants outside the context of wrongful convictions, the tone tends to be one-note, excoriating "stop snitching" culture. A recent editorial by Bill Maxwell, a columnist for the St. Petersburg Times, is typical. (A couple of similar recent articles or columns are here and here.) Criticizing the black community in Tampa Bay for ostracizing three women who helped two police officers after they had been shot, he also takes on the "snitching ethos":

If we do not call the police, we deserve the mayhem and dysfunction we suffer. When we conceal the identity of a murderer, we endanger everyone. When we turn our backs on drug deals near our homes, we cheapen the rule of law and destroy social values. In addition to its self-destructiveness, the snitching ethos alienates us from others, putting us at odds with normal behavior.

Maxwell's points generally are well-taken, if not particularly novel. But another recent column also caught my eye. This one, by Marc Hansen of the Des Moines Register, bears the headline, "Iowan mails Lefty's arm back to bar, won't snitch on thief." Far less gruesome than it sounds, the story involves the theft of a mannequin's left arm from a bar in San Francisco and its subsequent return by Doug Kintzle, a Des Moines resident who had it in his basement. Hansen explains that though Kintzle knows who stole the arm, the culprit is part of his cycling group, and Kintzle refuses to "snitch." As Hansen says, "you have to respect that." And I think he's right: most people would have no problem with Kintzle staying mum and protecting his friend.

But why is the Maxwell's "snitching ethos" bad, and Kintzle's refusal to "snitch" good? Despite the presence of a stolen plastic arm, I ask the question non-facetiously: in both cases we're talking about crimes that the police can't solve without an informant's help, yet in one case refusing to snitch is reprehensible and in the other it's respectable.

(posted by Michael Rich)

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Guest blogger Professor Michael Rich

I am very pleased to introduce Snitching Blog's first guest blogger: Professor Michael Rich formerly at Capital University Law School and recently moved to Elon University School of Law. Professor Rich has written about the use of informants as a potential violation of the Thirteenth Amendment, which prohibits involuntary servitude. From the abstract:

Though active informants cooperate for many reasons, most assist the police out of fear that if they refuse, they will be subject to criminal prosecution or more severe punishment. This Article argues that by compelling these "coerced informants" to work under such a threat, the government violates the Thirteenth Amendment's prohibition on involuntary servitude. As a doctrinal matter, compelling coerced informants to serve under threat of criminal sanction fits the Thirteenth Amendment's definition of involuntary servitude. Moreover, the use of coerced informants offends the free labor principles that animated the passage and ratification of the Thirteenth Amendment and underlie the Supreme Court's Thirteenth Amendment jurisprudence.

Link to article here: Coerced Informants and Thirteenth Amendment Limitations on the Police-Informant Relationship, 50 Santa Clara L. Rev. 681 (2010). Professor Rich will be here throughout August.

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