Street hustlers and criminal defense attorneys call this process “The 5K Game.” Indeed, one criminal defense attorney dubbed a cooperator in a recent drug conspiracy case that a “graduate of 5K University.” Why? Because the cooperator cooperated in a federal drug case in Pennsylvania the early 1990s, received a huge sentencing reduction as a result and then hit the streets and committed murders for hire in New York during the late 1990s and beyond. When he became ensnared in a murder and drug conspiracy case in 2007, he entered into a cooperation deal yet again. This cooperator’s tale elicits yet another fatal flaw of the cooperator institution: cooperators are often much, much more dangerous than the defendants they have cooperated against. Unsurprisingly, residents in inner city neighborhoods where such dangerous cooperators roam free are not happy with the effects that the “5K Game” is having on their communities. Indeed, I believe this anger with the unregulated cooperator institution is at the very root of the much publicized, yet little understood “Stop Snitching” phenomenon. While antipathy towards informants and cooperators has existed for decades—former FBI director William Webster famously remarked that “there is a tradition against snitching in this country”—the evils of the “5K Game” and mandatory minimums for drug related offenses have caused an explosion in anti-law enforcement sentiment in recent years, particularly among minority populations who are most affected by such policies. As criminologist David Kennedy told The Atlantic Monthly in April of 2007, “this [mistrust of law enforcement] is the reward we have reaped for 20 years of profligate drug enforcement in these communities.”Based on these comments and his reading of the book, drug policy prof and blogger Mark Kleiman views criticism of snitching, perhaps rightly, as a frontal attack on the drug war. As a drug war supporter, at the end of the day (he actually argues it was a public policy mistake to end alcohol prohibition), Kleiman thus encourages us to "Keep on Snitchin'." John McWhorter replied that the book made him think the entire war on drugs needed to be scrapped, causing Brown and Kleiman to digress over whether drug prohibition should be scrapped or retained.
Though Doc Berman and Alexandra Natapoff brought the discussion back down to earth by insisting that snitching plays out in many different contexts, it's entirely understandable that the debate over coercing criminals to testify in exchange for leniency would center at least in part on the drug war.
The best statistics I've ever seen on the aggregate use of snitching in drug law enforcement came from Texas drug task forces like the one in Tulia funded by the federal Byrne grant program. After management of Texas' task forces were taken over by the Texas Department of Public Safety, those units' aggregate reporting constituted the closest thing to hard numbers I've ever seen regarding (state) drug cases involving informant testimony. E.g., in this public policy report (pdf) published by ACLU of Texas in December 2002, I was able to calculate that "collectively requested $1,941,286 in funds for CIs in their 2002 grant applications." That's a lot of scratch paid to informants in a single year!
What's more, if you think none of the informants that money paid for accused innocent people, I'd encourage you to ask Regina Kelly, or at least listen to her interview with Radley Balko, about what happened to her and more than a dozen others at the hands of an addicted, mentally ill informant in Hearne, Texas. (Long-time readers may recall that posts from this blog got momentarily caught up in that court case.) The FBI in some instances will knowingly tolerate "serious violent felonies" by informants in order to retain a snitch's cover.
Not only do informants have incentives to lie, but task forces and other drug enforcers frequently have their own incentives to maximize their cases made thanks to asset forfeiture and don't always have many good reasons to closely examine snitch testimony favorable to their case. (I've been told that this is more frequently a problem with young prosecutors - long-timers tend to have been burned pretty often and may be less likely to rely solely on a snitch, the logic goes.)
Thankfully, Texas' Byrne task force system was abolished by Gov. Perry after a serious of remarkable and unfortunate scandals, and those funds have largely been shifted to give fat grants to border sheriffs to patrol the Rio Grande. However, Byrne task forces in other states still provide perhaps the best snapshot of informant use in drug cases. A quick Google search turned up this recent report on Byrne grant funded drug task forces in Massachussetts, which largely jibes with the numbers we saw in Texas (see p. 7):
During FFY 2005 and FFY 2006, the task forces reported 5,373 drug transactions. For the task forces that reported information on the types of drug transactions, purchases made by confidential informants were the most frequently reported type of drug transaction (45%), followed by purchases made by undercover officers (32%).These 5,373 drug transactions a two-year period resulted in more than 3,000 arrests and more then 10,000 drug charges, according to the report - 95% of them state-level offenses. Applying the percentage of informant-related transactions to arrests, around 1,500 defendants were arrested in Massachussetts by drug task force officers during those two years based on informant testimony.
Most of these informants were themselves in a position where they could have been arrested for their own crimes, but were granted leniency if they would go scout out other people for drug task force officers to arrest. A smaller number (who often begin "working off" cases then continue snitching for pay), become professional paid snitches like Alex White in Atlanta, who considered working as a police informant his "job."
If lying snitches were the only problem, there might be little overall reason for concern. Substantive corroboration requirements and vigorous cross-examination might prevent most such injustices (though right now that doesn't always happen). But forcing witness "cooperation" as it's practiced today by threatening long prison sentences has larger corrosive effects on the justice system to which Doc Berman's appropriately returned the discussion - the degradation of civil rights and liberties for everyone, not just those caught up in drug cases:
Hear, hear. Go get 'em, Doc! And those aren't the only serious problems. Regular readers know I've long thought this dark underbelly of the justice system deserves more discussion. Those interested in more on the subject should definitely mosey on over to TPM Cafe's Book Club, and I'm looking forward to reading and reviewing "Snitch" myself in the near future.
Through many provisions of the Bill of Rights -- particularly the right to a jury trial and the rights of confrontation and counsel -- the Framers sought to limit the ability of govertments to convict and punish persons based on suspect accusations. But, as Ethan shows with many anecdotes, persons facing certain and severe sentencing consequences quickly realize that flinging allegations may be their only sentencing life preserver, and some of these allegations are sure to stick.
Relatedly, and integral to this story as well, is the weakening of the privilege against self-incrimination. By threatening even more severe and certain punishment after a trial conviction, the feds now can tell suspects that only through self-incrimination and cooperation is there any real hope of a mitigated sentencing term. In this context there is a particularly disturbing irony: those who are most guilty and would least benefit from traditional trial protections are necessarily going to admit guilt and point fingers in the hope of reducing their sentencing exposure; in turn, those who believe in their innocence end up subject to the full brunt of the certain and severe sentencing realities if convicted after a traditional trial.