Informants as Pawns in the War on Drugs
The New Yorker has an extensive article, The Throwaways , on the misuse of informants.
Informants are the foot soldiers in the government’s war on drugs. By some estimates, up to eighty per cent of all drug cases in America involve them, often in active roles like Hoffman’s. For police departments facing budget woes, untrained C.I.s provide an inexpensive way to outsource the work of undercover officers. “The system makes it cheap and easy to use informants, as opposed to other, less risky but more cumbersome approaches,” says Alexandra Natapoff, a professor at Loyola Law School in Los Angeles and a leading expert on informants. “There are fewer procedures in place and fewer institutional checks on their use.” Often, deploying informants involves no paperwork and no institutional oversight, let alone lawyers, judges, or public scrutiny; their use is necessarily shrouded in secrecy.
Another good read if you missed it in June, the New York Times Magazine feature, Alex White, Professional Snitch.
The discussion shouldn't only revolve around misused informants. It should include their incentive to lie, and the effect on those they wrongfully accuse.
A study in 2009 showed that incentives increase false secondary confessions. A secondary confession is a polite name for snitch testimony.
A federal judge in Cleveland in 2008 freed 15 inmates serving long sentences due to a lying informant.
Snitch testimony is purchased testimony, usually paid for with promises of leniency for the informant's own misdeeds. Freedom is a commodity far more precious than money. The incentive to lie is enormous. The Government says it wants the truth, but it really wants its version of the truth, which too often isn't the real truth.
Snitch testimony is inherently unreliable and our system has depended on it for far too long. The practice has made our criminal justice system morally bankrupt.
The motive to fabricate testimony is inherent in a system that rewards snitching for personal gain. When the state offers a benefit in exchange for testimony, whether that benefit is explicitly stated or, as is often the case, implied, the incentive for an incarcerated person to fabricate evidence dramatically increases. With little to lose and much to gain, jailhouse snitches are often desperate to attain compensation – such as sentence reductions or even an agreement that they not be prosecuted at all – in exchange for testimony against another person.
Fabricated snitch testimony that leads to wrongful convictions is expensive not only in financial costs, but in societal costs: an innocent person is punished while a guilty person remains at large. The state is less credible in its pursuit of justice. And public frustration with delayed and unreliable justice grows.
In feeling sympathy for the abused informants, we need to also remember the many victims of their abuse, many of whom are languishing in our prisons. Needed changes go far beyond rules for supervising informants. A few from the 2009 study:
- Written pretrial disclosures of witness compensation arrangements and other information bearing on witness credibility.
- Pretrial hearings on the reliability of a particular informant’s testimony.
- A requirement that accomplice or in-custody informant testimony be corroborated.
- Cautionary jury instructions alerting the jury to the reliability issues presented by snitch testimony.
Better yet: Just don't snitch.
A great resource is law Prof Alexandra Natapoff's Snitching Blog. From the Introduction to her award-winning book, Snitching: Criminal Informants and the Erosion of American Justice, :
The idea behind snitching is simple—a suspect provides incriminating information about someone else in exchange for a deal, maybe the chance to walk away, or a lesser charge or sentence. In practice, however, informant deals are as varied as the crimes they involve.
At the same time, using criminal informants exacerbates some of the worst features of the U.S. justice system. The practice is clandestine and unregulated, inviting inaccuracy, crime, and sometimes corruption. It inflicts special harms on vulnerable individuals such as racial minorities, substance abusers, and poor defendants who lack robust legal representation. Because of its secretive and discretionary nature, it evades the traditional checks and balances of judicial and public scrutiny, even as it determines the outcomes of millions of investigations and cases. And finally, like the criminal system itself, it is rapidly expanding.
...The most dangerous versions of snitching tend to occur when law enforcement deploys criminals to generate new cases.
...Unlike civilian witnesses, criminal informants represent a tense compromise with the core goals of the justice system—crime prevention and punishment. After all, informants trade information with the government in order to escape liability for their own crimes, and can even earn the ability to continue offending. Informants may work both ends of the deal, maintaining relationships with the police and turning in other offenders even as they continue to break the law. In this sense, using criminal informants by definition requires the toleration of crime.
She also writes:
The penal system, moreover, is a multi-billion-dollar industry controlling the lives of millions of offenders, employing millions of law enforcement workers, and affecting the local economies of thousands of communities. Over the decades, it has altered the shape of American government itself, investing it with increasingly vast powers to investigate and punish. Using criminal informants is an integral part of this matrix, with many of these same weighty governance, educational, moral, and equitable dimensions.
Our penal system is also famously flawed. It is the most punitive system on the planet, incarcerating more people than any other nation. It is expensive, pulling billions of dollars into prisons and away from social services and schools. It is secretive and sometimes sloppy, often unaccountable and inaccurate. And it is racially skewed, punishing African Americans and Latinos more often and more heavily than whites, and deforming the life trajectories of individuals and communities of color.Snitching practices are intimately tied to many of these failings as well.
The No-Snitching movement is not about preventing witnesses to crime from speaking up. It's about the problems engendered by a system that rewards offenders who provide information on the misdeeds of others. It is about the threat to the integrity of our criminal justice system. It's about the need to revise our laws. It's about the failure of the War on Drugs.
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