Snitching Undermines Justice Institutions

Over the weekend CrimProf blog ran a feature highlighting Loyola (CA) law school prof Sasha Natapoff, and linking to her January article on Snitching: The Institutional and Communal Consequences, in the University of Cincinnati Law Review. If you have even a remote professional interest in the subject of snitches, or "confidential informants," to use the bureaucratic lingo, you simply have no choice but to read Natapoff's fine article. It's long, but if you print it out and take two hours to go through it like I did, it's worth it. Even if your interest in the criminal justice system is more policy oriented and you've never met a snitch, Natapoff is taking the debate over use of informants to a whole new level.

Lots of good stuff here. For example, she rightly describes the mechanics of informant agreements as an "extreme form of plea bargain," and fleshes out the implications. "The government (provisionally) agrees to reduce or eliminate a suspect's liability, while the suspect (temporarily) forswears his right to contest liability, while promising to provide information incriminating others," she writes. That's problematic, though, because:

the informant deal lacks the safeguards of the typical plea: specificity, completeness, finality, enforceability, judicial review and publicity, and, in the case of most informal negotiations, counsel. It is precisely these safeguards, however, on which courts and scholars have relied in justifying the system's heavy reliance on plea bargaining. Absent these protections and limits, the informant deal pushes plea bargaining towards the limits of its own legitimacy.

Pushed it right off the cliff, as far as I'm concerned, but seldom if ever have I seen the problems with this malevolent institution more sagely adumbrated. Natapoff estimates that an astonishing one in twelve black men returning to their communities from prison might be "active informants at any one time. By way of comparison, at the height of its power, the East German secret police -- one of history's most infamous deployers of informants -- had 174,000 informants on its payroll, approximately one percent of the entire East German populaton."

What a proud record: More informants than the East German secret police. Worse, she shows, informant use arguably causes as much crime as it's stopping:

a central harmful aspect of informant use is the official toleration of crime. ... The informant 'revolving door' in which low-level drug dealers and addicts are arrested and released with orders to provide more information arguably perpetuates the street-crime culture and law enforcement tolerance of it. At the very least, it violates the spirit of 'zero tolerance' and 'quality of life' community policing policies aimed at improving the communal experience of high crime communities. ... For communities already suffering from high crime rates, criminally active informants thus exacerbate a culture in which crime is commonplace and tolerated.

Ain't that the truth? In Palestine, a drug task force allegedly busted a man named Othella Kimbrew bringing large amounts of drugs into town in late 2002, but instead of getting him to finger bigger dealers up the food chain, they set the fellow loose for almost two years as a confidential informant in that 17,000 person town, giving him money to convince addicts to agree to help him buy crack. Hardly any of the 72 people, all black, who were arrested based on his testimony in October were actually crack dealers (only four were busted with significant weight). Instead, by offering money to individual addicts to score drugs for him, Kimbrew roped drug users into charges of delivery and/or sale.

That begs the question, though, how much crime did the drug task force create in Palestine with its decision to spend two years paying for Mr. Kimbrew to arrange drug transactions? I see real-world examples of law enforcement creating crime all the time, just like Professor Natapoff describes. She's right on the money.

Some of her proposals are common-sense, open government type reforms that may even have a chance in conservative states. ACLU of Texas proposed requiring corroborating evidence for snitches and improving defense attorney's discovery access to information about informants in recent testimony to the Texas Senate Criminal Jurisprudence Committee. Natapoff also suggested more data collection and analysis about confidential informant use, and restricting informant awards. Give her a read -- really good stuff from the ivory tower.