Lessons of disloyalty in the world of criminal informants.

• Author: Rich, Michael L.

ABSTRACT

Without informants, policing would grind to a halt. The majority of drug and organized crime prosecutions hinge on the assistance of confidential informants, and white collar prosecutions and anti-terrorism investigations increasingly depend on them. Yet society, by and large, hates informants. The epithets used to describe them--"snitch," "rat," and "weasel," among others--suggest the reason: the informant, by assisting the police, is guilty of betrayal. And betrayal is, in the words of George Fletcher, "one of the basic sins of our civilization." (1) But identifying disloyalty as the reason for society's disdain raises more questions than it answers. Are all informants disloyal, or only some? Are there governing principles to distinguish those informants who are disloyal from those who are not? To whom are these informants disloyal? What import does an informant's disloyalty have beyond the social stigma on the informant? These questions matter because informants are crucial cogs in the law enforcement machine, but they have largely escaped the attention of legal scholars.

This Article seeks to remedy this oversight. First, it explores how disloyalty functions in today's society by looking to the observations of philosophers and legal scholars who have considered the nature of loyalty and disloyalty as moral constructs. The Article then examines three scenarios that suggest insights into when and why informants are considered disloyal. The first is the case of an accomplice-informant who assists police in apprehending and prosecuting her partners in crime. The second scenario is that of a community with particularized norms against cooperating with the police, with a focus on the "Stop Snitching" movement that has become increasingly influential in high-crime communities. The third scenario looks at informants in the rest of society, where particularized norms against assisting the police do not govern. The analysis of these scenarios reveals that issues of disloyalty arising from the use of informants intersect with and inform sociological research on the marginalization of communities and the impact of police legitimacy on civilian cooperation and compliance with the law, as well as scholarly concerns about overcriminalization.

The Article then makes three policy proposals that aim to enhance civilian cooperation with law enforcement without undermining police effectiveness. First, it is proposed that police and prosecutors amend their informant screening guidelines to explicitly and publicly require consideration of loyalty issues arising from the use of a given informant. Public acknowledgement in this manner that law enforcement officials share important community values would encourage voluntary cooperation with police and compliance with the law. Second, law enforcement policymakers should curtail informant recruitment in marginalized communities that are home to anti-cooperation norms in favor of alternative policing strategies, as current policies that encourage the widespread use of informants undermine police-community relations in these communities. Finally, lawmakers should limit the use of initiatives, derogatorily called "snitch lines," that encourage civilians to report minor crimes and noncriminal suspicious behavior, and consider decriminalizing some minor regulatory-type offenses. Mainstream society's dissatisfaction with these programs, expressed in the harsh language of disloyalty, suggests discomfort with the snitch lines themselves, as well as the criminalization of the relatively minor offenses that they target.

TABLE OF CONTENTS INTRODUCTION I. THE PHILOSOPHY OF LOYALTY AND DISLOYALTY A. Basic Questions About Loyalty B. What Is the Value of Loyalty? C. What Is Disloyalty? D. What Is the Moral Status of Disloyalty? II. SPECIFIC INFORMANT SCENARIOS A. The Accomplice-Informant B. Disapproval of Informing in Specific Communities 1. The "Stop Snitching" Movement and Anti-Cooperation Norms 2. A Loyalty Analysis 3. Anti-Cooperation Norms in Other Communities C. Informing in the Rest of Society 1. When Does an Informant Become a "Snitch" in Society-at-Large? a. Are There "Snitches" in Mainstream Society? b. When Is an Informant a "Snitch" in Mainstream Society? 2. A Loyalty Analysis III. POLICY RECOMMENDATIONS A. Explicit Consideration of Loyalty Issues in Informant Screening B. Consideration of Community-Specific Norms in the Use of Informants C. Restriction on the Creation and Enforcement of Minor Offenses CONCLUSION INTRODUCTION

If society based its measure of criminal informants--a term used here in its broadest sense to include any person, criminal or not, who assists police in apprehending criminals (2)--solely on their usefulness to law enforcement, they would be lauded as heroes. (3) Their centrality to effective drug enforcement and the infiltration of organized crime syndicates is a truism, acknowledged by the law enforcement community and reflected widely in popular culture. (4) Indeed, informants play a crucial role in all areas of criminal law enforcement, (5) and their importance is increasing in the growing areas of counterterrorism and white collar prosecutions. (6) Simply put, many areas of law enforcement today would come to a virtual standstill without the cooperation of confidential informants.

But society's view of informants is at best ambivalent and often hostile. (7) American idiom is replete with epithets for those who assist the police: they are "snitches," "rats," "weasels," "stool pigeons," and "squealers." (8) Children learn at an early age that if they report wrongdoing to teachers and parents, they may not be seen as good citizens, but as "tattletales." (9) T-shirts featuring slogans like, "Stop Snitching," are sold in shops and online and banned in courts, (10) and defendants have been convicted of witness tampering for the threat implicit in the phrase, "snitches get stitches." (11) It Most strikingly, where these epithets were once hurled predominately at those who assist the police in exchange for leniency for their own crimes, they are now applied to innocent civilians who help the police. (12)

This apparent contradiction--that some of society's most valuable and frequently utilized crime-fighting tools are also the subject of frequent disdain--has received scarce examination by legal commentators. (13) The explanation for society's distaste is that many informants are judged by society, or some portion thereof, to have acted disloyally by assisting police, (14) and the words used to convey society's scorn for informants--"snitch," (15) "rat," (16) "stool pigeon," (17)--confirm as much. Yet those who recognize that informants engage in treachery rarely explore why this is the case, (18) and a consistent logic to explain how and why an informant commits betrayal is not evident.

Certainly, an informant's disloyalty is most obvious when she offers to testify against her accomplice in exchange for a more lenient punishment. (19) But even then, things are not as straightforward as they might seem. Rather than being viewed as a breach of loyalty, the accomplice-informant's decision to cooperate could be conceptualized instead as a change in the object of the informant's loyalty from a socially undesirable one--the criminal enterprise--to one that is socially appropriate--the State. Viewed from that perspective, it is less clear why the accomplice-informant is reviled by anyone other than the informant's accomplice. (20) And the analysis gets even murkier with respect to informants who have committed no crime yet are deemed disloyal when they assist the police: What duty of loyalty have they breached? To whom have they been disloyal?

This Article seeks to shed some light on these issues by looking, in Part I, to the work of philosophers and other scholars who have discussed in depth the role of loyalty and disloyalty in modern society. This examination reveals that while there is much disagreement about some specific aspects of loyalty and disloyalty, most philosophers agree on certain core concepts. (21) Most importantly, these scholars coalesce on a common definition of disloyalty and agree that, although the moral value of loyalty is uncertain, society roundly condemns disloyalty as immoral.

Part II then applies these insights to three situations in which society may condemn an informant's decision to assist the police with the goal of explaining when, how, and why the informant may be viewed as disloyal. The first situation is the prototypical case, mentioned above, of the criminal who informs on her accomplice in exchange for more lenient treatment by the State. The second is that of a noncriminal informant in a community that holds particularized norms against cooperating with the police. This discussion focuses in significant detail on the Stop Snitching movement that has chilled cooperation with the police in high-crime and largely inner-city neighborhoods, and draws lessons that can be applied to other communities that are home to particularized anti-cooperation norms. The third situation is that of an informant in society at-large, i.e., the remainder of society that does not hold particularized anti-cooperation norms. The application of philosophical insights into loyalty to these situations, a "loyalty analysis," reveals that the perceived disloyalty of informants intersects with and contributes to scholarship on the marginalization of communities, the importance of the perception of police legitimacy, and overcriminalization.

Finally, Part III draws on the previous insights to make three policy proposals that seek to help increase cooperation between police and civilians without hindering police effectiveness. First, police and prosecutors should amend their informant-screening guidelines to explicitly and publicly require that they consider loyalty issues that might arise in the use of a given informant. Second, law...