Criminal snitches are a pervasive feature of the justice system that the public rarely sees. Every year thousands of offenders offer information to the government on street corners, in the back of police cruisers, in jails, and in courthouse offices. In exchange for the information, police and prosecutors tolerate those informants’ crimes. Sometimes the informant avoids arrest altogether; in other cases, prosecutors reward cooperating defendants by filing lesser charges or seeking reduced sentences. Unlike traditional plea bargains, these deals often take place off the record, even as the information they generate is used to support warrants, arrests, and convictions.
The use of criminal informants is most common in drug enforcement, which relies on snitching at every stage of the legal process, from investigations to arrests to plea bargaining to sentencing. Since drug cases constitute about one-third of all state and federal dockets, informants are critical to the day-to-day operation of the justice system. But the snitching model is not limited to the war on drugs. It has spread to street crime, white collar crime, terrorism, and Internet investigations.
In short, the demand for helpful evidence has given rise to a massive underground marketplace in which government officials and suspects negotiate over criminal liability. These deals take place without the usual rules of record keeping, procedure, court oversight, and sometimes even defense counsel. All too often, the courts and the public never learn what offenses were committed or what deals were struck.
Informants can be powerful crime-fighting tools, providing inside information about gangs, drug distribution, organized crime, corporate fraud, and political corruption. But the evidence offered by informants is notoriously unreliable. According to a 2004 study by researchers at Northwestern University Law School, more than 45 percent of wrongful convictions in death penalty cases were due to false informant testimony, making snitches “the leading cause of wrongful convictions in U.S. capital cases.”
A particularly pernicious form of snitching has taken root in prisons and jails. Jailhouse informants produce so many wrongful convictions that several states have concluded they can no longer be used without more stringent controls. The use of in-custody informants nevertheless remains widespread. The first public glimpse of the phenomenon was provided by the Los Angeles Grand Jury Report of 1990, which exposed a rampant culture of exchange and fabrication in the Los Angeles County Jail during the 1970s and ’80s. Sheriffs, prosecutors, and inmates all understood that jailhouse snitches would be rewarded for coming up with information about other inmates, even when that information was clearly unreliable. Rewards ranged from dropped charges and shortened sentences to cash, jail privileges, even candy.
Federal law even has a special provision for jailhouse snitches. Rule 35 of the Federal Rules of Criminal Procedure offers sentence reductions to incarcerated offenders who provide information after they have started serving their sentences, a rule that Tucker Melancon, a U.S. district judge in Louisiana, has criticized as an invitation to fabrication. This rule created the conditions for the wrongful convictions of Ann Colomb and her three sons, Louisiana defendants who were found guilty of drug dealing in 2006 based on false information concocted by dozens of federal inmates trying to reduce their own sentences.
Drug informants constitute an even larger and arguably more troubling category than jailhouse snitches. In a highly publicized 2000 debacle, a federally funded drug task force made dozens of arrests in Hearne, Texas, based on information from a single informant—an addict with mental health problems who was trying to avoid new burglary charges. The resulting convictions were overturned after the informant was shown to have fabricated the evidence. The case triggered a lawsuit by the American Civil Liberties Union and inspired the 2009 movie American Violet. But law enforcement agencies still rely heavily on such witnesses, even though they have strong incentives to lie and even though the legal system is poorly equipped to verify their claims.
The good news is that there has been substantial movement toward reform. DNA exonerations and high-profile scandals like the ones in Los Angeles and Hearne have spurred legislators, journalists, and the public to question the shadowy practice of trading favors for evidence. California, Texas, Illinois, Florida, New York, and Washington state have considered or passed legislation restricting the use of informants, and several state commissions are studying the question. These efforts reflect the growing realization that widespread, unregulated informant deals are incompatible with a reliable, accountable, and transparent system of criminal justice.
Alexandra Natapoff, a professor at Loyola Law School in Los Angeles, is the author of Snitching: Criminal Informants and the Erosion of American Justice (NYU Press), which won the 2010 ABA Silver Gavel Award Honorable Mention for Books. She blogs at snitching.org. This column first appeared at Reason.com.