Snitching: Criminal Informants and the Erosion of American Justice.

• Author: Taslitz, Andrew E.
• Position: Book review

SNITCHING: CRIMINAL INFORMANTS AND THE EROSION OF AMERICAN JUSTICE. By Alexandra Natapoff. New York and London: New York University Press. 2009. Pp. xi, 260. $29.95.

INTRODUCTION

Alexandra Natapoff, (1) in her outstanding new book, Snitching: Criminal Informants and the Erosion of American Justice, makes a compelling case for reform of the system by which we regulate police use of criminal informants. Indeed, as other writers have discussed, (2) law enforcement's overreliance on such informants has led to a "snitching culture" in which informant snitching replaces other forms of law enforcement investigation (pp. 12, 31, 88-89). Yet snitches, especially jallhouse snitches, are notoriously unreliable. (3)

Informants snitch in exchange for benefits from the state. These benefits include monetary payments, immunity from prosecution, sentence reductions, and even the freedom to continue criminal activity--most commonly drugdealing--while police turn a blind eye (pp. 32, 47-54). The lure of such benefits entices many informants into outright lying, and others into exaggeration, contributing significantly to wrongful convictions. (4) Indeed, so grave is the innocence concern that numerous reformers have recommended a wide array of changes to the law from pretrial reliability hearings before permitting informants to testify, to corroboration requirements before snitches may testify, to wider discovery, cautionary jury instructions, limitations on informant rewards, and improved police officer training (pp. 190-99).

Courts or legislatures in some jurisdictions have occasionally adopted some of these reforms piecemeal, (5) while the FBI--though not most state law enforcement agencies--has adopted relatively stringent rules on how police "handlers" may treat their informant subjects (pp. 26, 47-49, 179-80, 187-90). But compared to many other areas of the criminal justice system, snitching goes largely unregulated (pp. 26, 83-84, 99).

Natapoff reviews all of these concerns concisely and effectively, adding her voice to the call for change. She does not, however, recommend abandoning snitching because she recognizes that certain categories of grave offenders--particularly white-collar offenders and gang-connected criminals--would escape unpunished without this investigative tool (pp. 11-12, 140-41). What she adds to the debate is a recognition that the overuse of snitching in certain geographic areas and for certain types of crimes can have ill social consequences well beyond convicting the innocent. These consequences include increasing crime, decreasing police legitimacy and community cooperation with the law, amplifying racial bias, harming police transparency and accountability, and raising the risk of civil rights violations. (6) Rephrased, even if what law enforcement does in any isolated case seems justified, the cumulative social cost of many such cases can far outweigh the cumulative social benefits. Natapoff argues for righting that balance and thus makes a persuasive and comprehensive case for not missing the forest for the trees.

After reviewing, in Part I, the legal and cultural basics of the informant system, this Review turns in Part II to examining Natapoff's argument that the social (rather than individual case) cost-benefit analysis requires changes in our current system of informant use. Natapoff's focus is primarily on police, and secondarily on prosecutors. Her larger purpose, however, is to make the case for change, rather than discussing how to bring those changes about. In Part III, I focus on what I see as one prerequisite for motivating systemic change: recognition of an aspirational ethical obligation of prosecutors to consider the systemic social costs of informant-use policies, rather than only the costs involved in each individual case. I do not, therefore, delve much in this brief Review into the practical politics of reform.

1. SNITCHING BASICS: THE RISKS TO TRUTH AND THE CONSTITUTION IN INDIVIDUAL CASES

   1. Incentives

      1. For Informants

         The dominance of snitching has been actively encouraged by the law. The U.S. Sentencing Guidelines purportedly set presumptive sentences while creating a system of departure from those sentences. (7) The guidelines create several powerful incentives for informants to snitch (pp. 29, 50-54). First, upon the government's motion, the guidelines grant judges the authority to sentence below the mandatory minimum sentence required for certain offenses if an offender has offered "substantial assistance" in investigating or prosecuting another wrongdoer. (8) Mandatory minimum sentences can be harsh (for example, manufacturing less than two sugar packets worth of crack cocaine carries a five-year sentence (p. 51)). Second, section 5K1.1 of the guidelines permits the court to depart downward from the guidelines sentence for any offense, whether a mandatory minimum applies or not, originally only upon the government's motion stating that the defendant has provided substantial assistance in investigating or prosecuting another person. (9) Although this latter provision's applicability is no longer contingent upon the government's motion (p. 52)--a consequence of a series of decisions in which the Supreme Court rendered the guidelines advisory rather than mandatory (10)--sentencing courts still must compute guidelines recommendations and give them substantial weight. (11)

         Federal Rule of Criminal Procedure 35 goes further still, permitting, upon the government's motion, the reduction of a defendant's previously imposed sentence if, after sentencing, he provides substantial assistance in investigating or prosecuting another person. (12) This provision incentivizes jailhouse snitches to lie even after their conviction (p. 54). Many states have analogous guidelines provisions, permitting sentencing mitigation for snitch assistance, (13) and states that do not have guidelines reach a similar result on the theory that this kind of assistance demonstrates remorse and reduces culpability (pp. 49-50).

         Snitches benefit financially, too: federal forfeiture rules allow courts to award up to one quarter of the take in a drug bust or other property seizure to informants up to $500,000. (14) Local police departments pay snitches in small-time cases too, using vouchers or cash. Some even pay in drugs directly, or indirectly by allowing "skimming" from the drugs used to make the buy (p. 54).

         Perhaps the greatest incentive for informants to snitch comes from their desire for the freedom, whether granted officially or unofficially, to continue engaging in crime (pp. 32-33, 43-44, 109-11). Police can refrain from arresting in the first place, or can arrest but consciously omit damning facts from the police report (pp. 47, 85-86). Some departments flatly ban permitting new crimes, while others bar "condoning" them, but most department rules contain no such prohibitions or effectively permit this kind of conduct for some types of crime, but not others (pp. 47-48). The U.S. Department of Justice Guidelines governing FBI and some other federal investigative agencies' use of informants fall into this last category, flatly prohibiting, for example, informant violence (other than in self-defense) and obstruction of justice, among others, while permitting illegal activity where authorized in writing, in advance, for a limited time period and where the authorizing agent has determined that the benefits outweigh the risks. (15)

         Although only prosecutors (not police) can confer immunity, courts often give great weight to promises of immunity by police, declaring the state "estopped" from prosecuting informants who rely on these promises (pp. 48-49). Informants may also snitch in exchange for legitimate immunity agreements or, more worrisomely, to protect third parties, such as family members, from being charged with a crime (p. 49). These "wired" plea deals attach or "wire" the outcome of the family member's case to the informant's cooperation (p. 49). Prosecutors may also agree to postpone a case's disposition to allow an informant to "work off" his charges by continuing to inform (p. 49).

      2. For Law Enforcement

         Law enforcement similarly has broad incentives to use informants. In some instances, such as white-collar or gang crime, criminal activity is so secretive, complex, or hard to detect, or involves such ever-present threats of violence against co-conspirators straying from the criminal fold, that prosecution is impracticable without informants (pp. 29-30, 131-34, 140, 145). In other cases, like drug crimes, informant use is simply easier than alternative investigative methods (p. 73).

         The ease of using informants stems partly from the freedom it grants law enforcement from many otherwise applicable legal and practical investigative limitations. Informants invited into criminals' homes and businesses breach no "reasonable expectations of privacy," and thus do not constitute a search for Fourth Amendment purposes. (16) Likewise, informants are not subject to Title III and similar state electronic eavesdropping statutory protections. (17) Nor does informant questioning of a suspect violate Miranda, since an offender so questioned is not in a "police-dominated atmosphere," (18) and is therefore not in "custody." (19) Moreover, because informant-handler interactions so often occur outside the formal processes of the law (particularly where no arrest occurs or where key information is omitted from police reports), deals may occur in total secrecy (pp. 83-86, 89-94). This secrecy gives police the freedom to act without judicial scrutiny or prosecutorial oversight (pp. 94-97). This lack of accountability and freedom from seeking search warrants or wiretap orders, or completing cumbersome paperwork, allows police to act quickly, cheaply, and without fear of challenge from other institutions in the criminal justice system (pp. 31, 94-97). That lack of oversight also saves police time and...