Collateral damage? Juvenile snitches in America's "wars" on drugs, crime, and gangs.

• Author: Dennis, Andrea L.

INTRODUCTION: WHERE'S WALLACE? I. OPERATING OFF THE RADAR: THE REGIMENT OF JUVENILE INFORMANTS A. Mission Defined B. Recruitment Efforts C. Deployment Levels D. Operating Procedures II. BORDER CONFLICT: PARENS PATRIAE, POLICE POWER, AND JUVENILE INFORMANTS IN THE "WARS" ON DRUGS, CRIMES, AND GANGS A. The Government as Child Protector B. The Government as Warrior C. Juvenile Informants behind Enemy Lines 1. The Government's Perspective a. Efficient and Necessary Crime-Solving Strategy b. Juveniles Are Miniature Adults c. Promotes Rehabilitation 2. Through the Eyes of a Child a. Physical Harm b. Psychological and Ethical Harm c. Family Tension III. DRAW DOWN; MODEL APPROACHES TO CURTAILING THE USE OF JUVENILE INFORMANTS A. Model #1: A Categorical Rule 1. The Rationale 2. The Pros and Cons B. Model #2: Prior Judicial Approval 1. Procedural Matters 2. Proposed Standard #1: The Best Interests of the Child. 3. Proposed Standard #2: Informed Consent by a Mature Minor 4. The Pros and Cons a. Best Interests of the Child Standard b. Mature Minor and Informed Consent Standard C. Plotting the Course CONCLUSION INTRODUCTION: WHERE'S WALLACE?

Sixteen-year-old drug dealer Wallace wants to get out of the Baltimore City drug trade. Orphaned and homeless, Wallace previously dropped out of school and now wants to go back. He's tired of the drug "game" and conflicted about his role in it. He tells this to D'Angelo, his boss and friend. Always supportive, D'Angelo gives Wallace some money to help him get out of the business.

Shortly thereafter, however, Wallace is arrested. Still eager to get out of the game, Wallace tells the arresting officer he is willing to give up information he knows. He identifies three of his drug crew members who were involved in the torture and murder of another teenager. He also explains his role as the one who pointed out the youth to the murderous thugs. To keep him safe before he testifies, the officers take Wallace to stay with his grandmother in the Maryland countryside.

Meanwhile, Wallace's and D'Angelo's bosses, who ordered the teenager's homicide, decide that Wallace needs to be eliminated because he can link them to the crime. When D'Angelo's bosses ask him where Wallace is, D'Angelo tries to protect Wallace. He assures them that Wallace is not a threat because he is no longer in the drug business and has moved out of town.

Out in the country at his grandmother's house, Wallace is homesick and bored. Not knowing that he's been tagged for elimination, he decides to go back to the city projects to ask for his "job" back. When he returns, he is immediately killed by the organization's "muscle." D'Angelo, unaware of Wallace's death, is later arrested by officers after completing a drug run. During interrogation, officers show D'Angelo pictures of Wallace's dead body and accuse him of not protecting his own. D'Angelo is upset but non-responsive to their accusations. Later, when D'Angelo's boss and the crew's lawyer visit him in jail, D'Angelo repeatedly implores them: "Where's Wallace?" He gets no answer to his question. (1)

America has long had an ambivalent relationship with its children, especially regarding criminal and juvenile justice issues. On one hand, society views children as vulnerable incompetents requiring protection from themselves and others. Thus, the government invokes the doctrine of parens patriae, meaning the authority of the sovereign to protect vulnerable individuals, (2) to create and maintain juvenile delinquency systems. On the other hand, at times, children are "adultified," i.e., viewed as miniature adults with similar abilities, obligations, and responsibilities. This contrasting view is exemplified when the government transfers juveniles to adult criminal court for prosecution, rather than adjudicating the matter in juvenile delinquency court.

America's "wars" on drugs, crime, and gangs have exacerbated this tension-filled relationship. The government has waged these "wars" to protect the public's safety from these perceived threats. To that end, it exercises its police power to adopt aggressive strategies and tactics to investigate and prosecute crimes. However, these strategies frequently clash with the government's long-standing commitment to protect children, pursuant to parens patriae.

One example of this clash is the government's use of juvenile informants in the investigation and prosecution of criminal and juvenile delinquency cases. (3) Within the criminal justice system, a vibrant snitching institution operates to assist the government in its "wars" on drugs, crime, and gangs. (4) Alongside adults, government officials enlist and conscript juveniles--some of whom are engaged in criminal activities and some who are not--to act as informants. AS a result of their informant activities, some children have been killed. (5) Others have suffered verbal and other non-physical intimidation or have been shunned by their peers. (6) Even children who were simply suspected of being snitches have been killed. (7)

The use of children as informants has been largely unacknowledged. Regulations of informants generally fail to distinguish between adults and juveniles. Similarly, legal scholarship discussing the use of informants primarily focuses on adult informants. (8) Yet, the concerns respecting the use of juvenile informants are different from those of adult informants and require special attention. Because of their immaturity, underage informants raise special physical, psychological, ethical, and familial concerns.

Wallace's story, though fictional, dramatically demonstrates both the tension between parens patriae and police power, and the need for stricter regulation of juvenile informants. Wallace "worked" on the "front lines" in the streets of one of America's poor inner-cities rife with drugs and violence. He was orphaned, truant, and homeless. The government stood to gain substantially from his information and testimony. It would have closed a homicide case and obtained the arrest of several serious criminals long sought by the government. Wallace's motivations for informing were complex. He at once desired to get out of a criminal lifestyle, make amends for his involvement in a murder, and obtain criminal leniency. Without parents and legal counsel, however, his agreement to inform and actions thereafter were unguided and misguided. Ultimately, his decision cost him his street "family" and his life.

The police and prosecutor in Wallace's case, however, gave little weight to the particular vulnerabilities of child informants in comparison to their desire to investigate and prosecute crimes. In assuming a war-like approach to solving domestic social problems, the government abdicated its protector function vis-a-vis children and instead embraced a bunker, ends-justify-the-means mentality. (9) To the government, Wallace was simply yet another crime-fighting weapon, and the government paid little regard to the harms such use posed to his life. (10)

This Article contends that governments should temper the use of juveniles as informants by reliance on the doctrine of parens patriae. Doing so requires consideration of the harms that juveniles experience as a result of informing, rather than focusing solely on winning the "wars" for public safety. Consideration of the harms in turn dictates that governments adopt an extremely conservative approach to the use of juveniles as informants, thereby severely limiting and closely regulating their use.

This Article is divided into three sections. Part I describes the current practice of using children as informants. More particularly, it defines and exemplifies "child informant," describes the government's recruitment techniques, and discusses the prevalence of child informants. This Part also discusses the de minimis level of regulation of child informants.

Part II describes the tension between the government's dual responsibilities to protect child informants and promote public safety. First, the Part begins with a discussion of how the parens patriae doctrine and general police powers have traditionally been used to protect children. Second, it explains the government's war-like approach to public safety challenges, exemplified by the "wars" on drugs, crime, and gangs. Third, it analyzes the government-proffered justifications for using underage informants to reveal the tension between the use of child informants and the government's responsibility to protect children. Finally, it utilizes a child-centered perspective to posit harms to juveniles resulting from their use as informants. This Part contends that these harms weigh in favor of law enforcement agents and prosecutors adopting conservative policies regarding their use of child informants.

Part III offers several alternative measures to ensure that children are only used as informants in limited and reviewable circumstances. First, it proposes a categorical age-based restriction limiting the use of underage informants. Second, it suggests requiring judicial pre-approval before a child may act as an informant and sketches out a procedural mechanism and alternative standards for approval, i.e., whether it is in the best interests of the child to act as an informant or whether a "mature minor" has given informed consent. Ultimately, the Article concludes that governments should adopt the best interests of the child standard. The Article closes by positing some ramifications of the limited use of children as informants.

1. OPERATING OFF THE RADAR: THE REGIMENT OF JUVENILE INFORMANTS

   1. Mission Defined

      An "informant" or "snitch" is any individual--whether a criminal, witness, victim, or tipster--who provides information to government authorities for use in investigating and prosecuting the illicit activities of another. (11) The subject or target of information may be anyone, including, but not limited to, family members, friends, acquaintances, co-conspirators...