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The government's long-standing, secretive practice of using criminal informants is finally getting its day in court - and in Congress. Last month, a federal judge ordered the FBI to pay $102 million for knowingly using the false testimony of a criminal informant in the wrongful murder convictions of four men. The week before that, the U.S. House Judiciary Committee held a hearing on law enforcement confidential informant practices. That hearing was prompted by the fatal police shooting of 92-year-old Kathryn Johnston. These two events represent a growing public recognition that criminal informants play a powerful and problematic role throughout our justice system, highlighting the need for scrutiny and reform. The confidential informant system is built on the widespread, secretive and largely unregulated governmental practice of forgiving criminals in exchange for information. The multimillion-dollar verdict against the FBI offers just a glimpse. In 2002, Boston FBI agent John Connolly was convicted of racketeering and obstruction of justice, stemming from his handling of two Mafia informants, Stephen "The Rifleman" Flemmi and James "Whitey" Bulger. Kathryn Johnston's death last November epitomized other dangers connected to this secretive official practice. The police targeted Johnston's Atlanta home based on a bad tip from a suspected drug dealer; they then fabricated an imaginary informant to get a warrant; and after Johnston's death, the police tried to pressure a long-time snitch, Alex White, to lie and say that he'd bought drugs in the elderly woman's home. As the Johnston tragedy reveals, a disturbing consequence of the criminal informant system is the effect it can have on poor, high-crime, urban neighborhoods. Because criminal informants are a cornerstone of heavy drug enforcement in communities such as Johnston's, criminal snitching is pervasive. Police often tolerate offenses committed by informants, while law-abiding citizens must live near criminal offenders looking to work off their liability. Because the deals typically remain secret, police and informants alike can get away with breaking the rules. The scenario raises a hard question: Does the use of criminal informants (as opposed to citizen witnesses) improve safety and law enforcement effectiveness in these vulnerable urban communities? Because most jurisdictions have no mechanism for keeping track of how many informants there are, how many crimes they solve, or how many crimes they commit, more data and oversight is desperately needed. The problems are not limited to street crime or drug enforcement. From murder to antitrust to child pornography to terrorism, criminals can obtain lenience by providing information, much of it wrong. According to a study by Northwestern University School of Law, nearly half of all wrongful capital convictions are due to bad information from a criminal informant. At least three states -- Illinois, Texas and California -- have passed or are considering legislation to curtail the use of compensated criminal witnesses due to their unreliability. Compared to state and local jurisdictions, the federal government keeps better track of its informants, but as the FBI verdict illustrates, even these controls are deeply flawed. The federal government needs to learn these cautionary lessons. Counterterrorism investigations depend increasingly on informants, many from other countries and cultures, some of them criminals themselves. The corrosive official habits typical of drug enforcement -- such as covering up informant crimes, failing to keep records, violating rights and breaking rules -- could be very costly for the U.S. government in this new arena. The promising fact that last month's hearing was co-sponsored by the Subcommittee on Crime, Terrorism and Homeland Security, as well as the Subcommittee on the Constitution, Civil Rights and Civil Liberties, suggests that some in Congress have already taken note. Our criminal system depends too heavily on the secretive policy of trading guilt for information. Sometimes it is necessary, enabling the government to penetrate conspiracies, corporations or gangs, and to prosecute important cases. But as House Judiciary Committee Chairman John Conyers, D-Mich., observed, these practices threaten the integrity of "the entire criminal justice process in America, federal and state." The secretive culture of criminal snitching makes it too easy to conceal lies, tolerate crime and break rules. That's why Congress should require states as well as federal agencies to collect general data on the use of criminal informants to reveal the true extent, costs and benefits of this important yet dangerous practice. Congress should also establish better controls on informant witnesses, and more accountability for police and prosecutors. Only with public accountability and better regulation can we hope to prevent future tragedies. Alexandra Natapoff is a law professor at Loyola Law School, Los Angeles, and the author of a forthcoming book about criminal informants in the justice system. Her July 19, 2007, testimony before the U.S. House Judiciary Committee is available at www.judiciary.house.gov. |
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