The science of snitching

by Eric Ginsburg

At any given time, there are hundreds of thousands of people working as police informants. Their role is crucial to police work, but very little is known — outside of law enforcement circles — about their usage and even less is done to protect them.

Elon Law associate professor Michael Rich is somewhat of an expert on informants — he’s one of the only people in the nation who studies or writes about how the process impacts the informants.

Most people who become informants are low-level offenders who cooperate out of terror, Rich said. They are vulnerable too — often drug addicts, minors, undocumented workers or people with mental handicaps.

People who are less versed in the criminal justice system are more likely to cooperate, he said, and police are more inclined to try and make an informant out of someone who doesn’t have as many resources, such as the ability to pay a private lawyer to fight a charge. Despite the possible personal benefits to cooperating, there an array of dangers.

“Active criminal informants are vulnerable to substantial physical, social, and moral harm, yet society does little to ensure their safety,” Rich wrote in the American University Law Review. “Moreover, informant recruitment is inherently coercive, and there are no safeguards to ensure that informants agree voluntarily to cooperate.”

Informants are untrained and put in situations where they can’t protect themselves, and it isn’t unheard of for them to be killed. After catching someone in a small drug bust and flipping them, police have sent informants to buy larger amounts of harder drugs and possibly weapons. As Sarah Stillman’s article “Pawns in the drug war” in the New Yorker last month articulated, low-level informants around the country have been killed when police sent them on such missions, with no repercussions on the police departments for their untimely deaths.

Once someone has decided — or been coerced — to cooperate with law enforcement, there is no reason for police not to overpromise and underdeliver, but deals like a reduced sentence or a more favorable immigration hearing are out of the officers’ hands and up to prosecutors. However, police can choose not to bring charges in the first place.

“Good policing sometimes means deciding when and when not to prosecute,” Rich said. The problem is, police and prosecutors have unreviewable discretion.

Once facing charges, people are again pressured to cooperate with the system — this time, in the form of plea bargains. Just like police are encouraged to seek cooperation and information wherever possible, almost all cases are settled out of court, as defendants enter pleas.

As author Michelle Alexander wrote in her New York Times article “Crash the system, go to trial,” 90 percent of criminal cases never go before a jury. Some people are willing to plead guilty to crimes they are innocent of committing when faced with possibly long sentences, but the consequences of cooperating can be dire — losing employment opportunities, food stamps and public housing are just a few potential outcomes, Alexander said.

The article outlines the possibility of non-cooperation as a way to address numerous problems in the legal system, pointing out that there isn’t space for every case to go to trial. Non-cooperation happens at the informant level too. Police sometimes blame a “stop snitching” culture, which is an easy scapegoat for an inability to solve crimes, Rich said.

After a drive-by shooting in Philadelphia left an infant in the hospital two months ago, police and media outlets quickly blamed residents for not coming forward. Too quickly, wrote City Paper’s Isaiah Thompson, because it’s not clear there were any witnesses.

The idea of not reporting crimes to law enforcement or refusing to cooperate is nothing new — Orthodox Jews have long opposed informing on members of their community, Rich said. What’s more interesting, he said, is what the refusal to cooperate tells police about how the public views them.

People decline to cooperate and provide information for multiple reasons that boil down to a lack of trust — general distrust of the police, fear the police can’t protect them if they cooperate or the belief that the case won’t go anywhere if they do. Under-prosecution by creating informants doesn’t necessarily make neighborhoods safer, Rich said, and can erode public confidence that police will do anything with the information they turn over. The “stop snitching” attitude may harm communities by letting people get away with crimes, he said, but not protecting informants hurts too. There is much that could be done, like limiting the use of minors, people with mental handicaps and drug addicts as informants, Rich said. While it may be difficult to delineate who is an addict, doing so could benefit police because they are weaker informants.

Rich said it isn’t feasible to require an attorney’s presence when agreements are made because legislators would never fund it, but police should be liable if something happens to their informants.

Police should be required to refer deals to the prosecutors’ office and involve them from the jump, which would help to prevent overpromising.

While it may be easy to dismiss concerns about proper use of informants for someone who doesn’t participate in criminal activity, Rich warns us not to be so quick to distance ourselves.

“The way the system is set up, we’re all sort of criminals in some way,” he said. “Traffic enforcement can be used. Drug criminalization makes it really easy to have a criminal class.”

In such an environment, it’s less surprising that informants are treated as disposable or interchangeable— as Rich said, there is always another low-level offender police can use — but the need for transparency and changes comes into sharper view.