Texas jailhouse-snitch reforms praised

The New York Times over the weekend (7/15) had a staff editorial praising the latest reforms in Texas aimed at reining in the use of jailhouse informants, part of the Lone Star State's latest round of innocence legislation passed earlier this year (HB 34). The article opened:

Prosecutors love jailhouse informants who can provide damning testimony that a cellmate privately confessed to a crime. Jailhouse informants, in turn, love the perks they get in exchange for snitching, like shortened sentences, immunity from prosecution or a wad of cash.

As you might imagine, though, in a market driven by such questionable motives, the testimony these informants provide is often unreliable. 

Even worse, it can be deadly. False testimony from jailhouse informants has been the single biggest reason for death-row exonerations in the modern death-penalty era, according to a 2005 survey by the Center on Wrongful Convictions. They accounted for 50 of the 111 exonerations to that point, and there have been 48 more exonerations since then. 

Last month, Texas, which has been a minefield of wrongful convictions — more than 300 in the last 30 years alone — passed the most comprehensive effort yet to rein in the dangers of transactional snitching.

We discussed this new law in the top story of the latest Just Liberty podcast. Here's how the Times described it:

The new law requires prosecutors to keep thorough records of all jailhouse informants they use — the nature of their testimony, the benefits they received and their criminal history. This information must be disclosed to defense lawyers, who may use it in court to challenge the informant’s reliability or honesty, particularly if the informant has testified in other cases. 

The law was recommended by a state commission established in 2015 to examine exonerations and reduce the chances of wrongful convictions. The commission also persuaded lawmakers to require procedures to reduce the number of mistaken eyewitness identifications and to require that police interrogations be recorded — smart steps toward a fairer and more accurate justice system.

This is the third piece of significant informant reform legislation passed by the Texas Lege in the 21st century. The first, a requirement for corroboration of informant testimony in undercover drug stings, passed in 2001 in the wake of an ugly batch of racist false convictions arising out of the Tulia drug stings. Gov. Rick Perry eventually pardoned 35 defendants, and the episode led to a five-year campaign which ultimately convinced the Governor to de-fund Texas' drug-task force system entirely.

Then in 2009, the first session your correspondent was Policy Director for the Innocence Project of Texas, the Lege passed a corroboration requirement for jailhouse informant testimony. (This has been particularly important in cases where flawed forensics were coupled with jailhouse snitch testimony to secure false convictions.) The following session, the Michael Morton Act strengthened disclosure requirements for prosecutors in ways that specifically implicated informant testimony. Plus, Texas has seen other informant-related legislation - e.g., allowing for pretrial reliability hearings regarding compensated informant testimony - which was filed and debated but never made it through the gauntlet.

So when the Exoneration Review Commission tapped law prof Alexandra "Sasha" Natapoff - whose work has informed Grits' advocacy on these issues for more than a decade - to advise them on needed informant reforms, that culminated many years' efforts educating legislators on problems with and failures by the informant system. It wasn't just some pop-up surprise in an otherwise dreary session.

Fixing problems with informants requires long-term work; there are few short-term reform fixes in a criminal-justice system this vast and unwieldy. Indeed, in the long run, the cultural shift advocated in the close of the Times editorial is without question the most important reform possible, if also the most difficult to achieve:

[M]aking evidence admissible at trial only goes so far. The vast majority of convictions are the result of guilty pleas, which means a defendant may not even find out that an informant was paid to incriminate him before having to decide whether to accept a plea offer. 

Some states have begun to require that judges hold hearings to test an informant’s reliability, much as they would test an expert witness’s knowledge — before the jury can hear from him. 

But the deeper fix that’s needed is a cultural one. Many prosecutors are far too willing to present testimony from people they would never trustunder ordinary circumstances. Until prosecutors are more concerned with doing justice than with winning convictions, even the most well-intentioned laws will fall short.

MORE: From the Dallas Morning News.