Changing Ohio's Snitch Code: Require a Conviction in the Leniency for Work Exchange

• Author: Stephen Whetstone
• Position: Expected J.D. candidate: May 2011
• Pages: 85-130

CHANGING OHIO’S SNITCH CODE: REQUIRE A

CONVICTION IN THE LENIENCY FOR INFORMANT

WORK EXCHANGE

STEPHEN WHETSTONE*

I. INTRODUCTION

A. Why Inform?

What could possibly motivate individuals to rat on their friends? The

answer is most often a simple one: fear of incarceration. When self-

preservation is at stake, individuals often agree to assist authorities in

investigating, arresting, and prosecuting other criminals.1 Sometimes this

fear of incarceration can lead criminals to snitch on even their closest

friends and family members.2

What is it about incarceration that makes a person commit such an act

of betrayal? Is it merely selfishness, desperation, or fear? Does the person

feel that the law should not apply to them? Is it that individuals only feel

justified in betraying another after the police assure them that they are

doing the right thing?

Copyright © 2011, Stephen Grant Whetstone.

* Expected J.D. candidate: May 2011. I was drawn to the world of informants through

my volunteer work at the Southeastern Correctional Facility in Lancaster, Ohio. However,

my intrigue with informants really blossomed under the employment and guidance of

Professor Michael Rich. This article was made possible thanks to Professor Rich‘s

opinions, research, and his latest publications dealing with what he terms ―coerced

informants.‖ Thank you Professor Rich. I hope that this note can somehow make a

difference.

1 See Michael Beebe, Dea l Leaves Informant F earing Retribution: Attica Police

Accused of Reneging on Pledge, BUFFALO NEWS, Nov. 14, 2009, at A1, a vailable at

http://www.buffalonews.com/incoming/article21504.ece [hereinafter Beebe, Deal Leaves];

Michael L. Rich, Case Reveals Fla ws in Informant Recruitment, BUFFALO NEWS, Nov. 25,

2009, at A6, available a t http://www.buffalonews.com/opinion/anothervoice/story/

873056.html [hereinafter Rich, Case Reveals Flaws]; Aisling Swift, Mom Agr ees to Testify

Against Dad in Baby’s Death, NAPLES NEWS (Feb. 4, 2010), http://m.naplesnews

.com/news/2010/feb/04/mom-agrees-testify-against-dad-babys-death/.

2 See John Marzulli, Nod Father’s Boy a Nightmare: Wife, N.Y. DAILY NEWS, June 14,

2010, at 3, availab le at http://www.nydailynews.com/news/ny_crime/the_mob/2010/

06/14/2010-06-14_it_made_me_sick_when_he_testified_against_dad_nod_fathers_ boy_

a_nightmare_wife.html; Swift, supra note 1.

86 CAPITAL UNIVERSITY LAW REVIEW [39:85

Is snitching the right thing to do? Would you choose to do ―the right

thing‖ and alert a proctor if your friend was cheating on an exam? Would

you do so out of a sense of moral duty3 or an obligation to uphold the

integrity of the grading system? Would your decision to snitch hinge on

whether you could do so anonymously, thus, avoiding the label of a rat?

Would it matter whether the cheater was a friend compared to a classmate

that you despise? What if you were the cheat and the only way to save

your career was to turn in a few like-minded classmates? What if you were

wrongly accused, made to believe that a jury of your peers would

undoubtedly find you guilty, and convinced that the only ―easy‖ way out

was to snitch on someone you know who really is guilty?

These questions may seem philosophical, but the reality is that people

often face them and snitching happens.4 The problem is: how do we

ensure a relatively safe, realistic, constitutional, and ―j ust‖ model to

facilitate the snitching process in our criminal justice system? The answer

may not be perfectly clear. But the flaws in our current model are

staggering.5 The purpose of this article is to point out those flaws and

propose legislation aimed at curing them.

B. Article Layout

This note begins its discussion in Part II.A with a case study showing

some of the more egregious flaws inherent in the existing inform-for-

leniency approach. The section tells the story of two young traffic

violators who were convinced to sign a confidential informant agreement

by an eager-to-make-cases police officer.6 The author explains why this

story should be shocking to average citizens and how this story

demonstrates the need for reforming the current informant system.

Part II.B then generally discusses informants. It explains their utility,

their continued use, and the consequences of such continued use. It further

discusses a particular class of informants: those who work for the police in

exchange for leniency. The author ends this section explaining why

3 See, e.g., Mike Celizic, Daughter Turns Mom in for Ponzi Scheme, TODAY (Apr. 2,

2010, 10:28 AM), http://today.msnbc.msn.com/id/36147685.

4 See id.; Beebe, Deal Leaves, supra note 1; Michael Beebe, Walking Thin Line in

Village of Attica: Would-Be Informant Says Police Coerced Her into Cooperation,

BUFFALO NEWS, Nov. 8, 2009, at A1, a vailable at http://www.buffalonews.com/incoming/

article20446.ece [hereinafter Beebe, Walking Thin Line]; Swift, supra note 1.

5 See infra Part II.A.

6 See Beebe, Deal Leaves, supra note 1; Beebe, Walking Thin Line, supr a note 4.

2011] CHANGING OHIO‘S SNITCH CODE 87

requiring a conviction before using that class of informants is the best

method.

Part II.C discusses Federal Rule of Criminal Procedure 35 and how the

Rule enables that method. After discussing the mechanics of the Rule,

which permits a judge to reduce a person‘s sentence in exchange for

assisting authorities in bringing other criminals to justice,7 the author

discusses problems with its application.

Next, Part II.D examines the Ohio statute that allows leniency for

informing.8 The author explains the mechanics of the Ohio rule, its risks,

and its pitfalls.

Part II.E then proposes a Model Statute. This Model Statute embodies

the strongest elements of Federal Rule of Criminal Procedure 35, addresses

Rule 35‘s inadequacies, and adds new requirements to minimize the risks

associated with the current informal model of trading information for

leniency. In addition, Part II.E explains what an ideal statute should

contain and why it should contain it. Further, the section describes how

the Model Statute itself best meets the goal of creating a constitutionally

sound model for informing. Part II.E also shows how the Model Statute

contains the safeguards of judicial oversight and adequate representation,

helping ensure that the right kinds of people are taking the right types of

risks.

Lastly, Part II.F addresses possible concerns with the new model. It

explains how the goals met by the Model Statute outweigh the potential

concerns from the legislature, judiciary, police, informants, and taxpayers.

In summation, the author concludes by reiterating how the Model Statute

benefits informants and society in general.

II. DISCUSSION

A. Case Study: Attica, New York

1. The Facts

The case of Bianca Hervey provides a particularly disturbing example

of our broken informant system.9 Hervey was a twenty-year-old college

student who the police pulled over for having a suspended driver‘s

license.10 The state suspended her license because she failed to pay a few

7 See FED. R. CRIM. P. 35(b).

8 OHIO REV. CODE ANN. § 3719.70 (West 2004).

9 See Beebe, Wa lking Thin Line, supr a note 4.

10 Id.