Legislatures around the country are considering—and passing—bills to tighten rules governing the use of criminal informants. The “new wave of reforms” is long overdue for a practice that has historically been secretive and under-regulated, writes a University of California law professor.
Nobody likes a snitch, but never have so many people been doing so much about it.
Legislatures around the country, from Texas to Montana to New York, are considering and passing bills to better regulate the use of compensated criminal witnesses. As the New York Times Editorial Board complained just a couple of months ago, “[m]any prosecutors are far too willing to present testimony from people they would never trust under ordinary circumstances.”
Apparently state lawmakers agree.
Almost all of the legislation requires better tracking and disclosure. It has become an article of common sense that if the government is going to pay its criminal witnesses for evidence and testimony, it should have to keep track of them, their histories and those rewards—and disclose that information to the defense.
Texas has been a leader in this regard, passing comprehensive new requirements in July. Such reforms are driven first and foremost by the fear of wrongful conviction: Compensated witnesses hoping to gain their own freedom obviously have strong incentives to lie.
Better tracking and disclosure also strengthen the integrity of the adversarial system. While Supreme Court cases like Brady v. Maryland and Giglio v. U.S. already require prosecutorial disclosure, constitutional rules have turned out to be relatively weak guarantees that the defense will get salient information about informants in their cases. These new state laws are an important effort to level the adversarial playing field and improve its accuracy as well as its integrity.
Lots of states are going further, however. They are rethinking not just what the government should disclose about its informants but under what circumstances it should be permitted to use them at all.
Many states are trying to get the bench more involved, requiring pretrial reliability hearings in which judges act as gatekeepers to evaluate informant reliability before those informants get in front of a jury.
These procedures are like the Daubert hearings currently used to screen experts and they have the same rationale: Informants, like experts, are paid and controlled by one side, hard to cross examine, and often exert undue influence on lay juries. Both Washington and Montana considered exemplary legislation that would require reliability hearings in all cases.
Some legislators have worked on limiting the benefits that informants can receive, or, in death penalty cases, banning them altogether. Other states have taken a different tack, recognizing that unreliability is just one of many challenges raised by the creation and use of informants.
For example, parents around the country were shocked to learn that some college campus police pressure students into becoming informants. The coercion of young people and other vulnerable targets became headline national news several years ago when 23-year-old Rachel Hoffman became an informant to work off a minor drug charge in Tallahassee, Florida. She was killed during a dangerous sting operation, and her death led to the passage of Rachel’s Law which required Florida police to come up with stronger informant guidelines.
This year, North Dakota set a new standard for reform with Andrew’s Law, named after college student Andrew Sadek who was killed after being pressured into becoming an informant by a local drug task force.
At least eight states—California, Illinois, Mississippi, Montana, New York, North Carolina, Texas, and Washington—considered these sorts of new rules in 2017. Some of the bills passed, some didn’t—often legislation like this takes a couple of years to become law—but they all reflect a deepened awareness of the informant challenge and the legislative commitment to better regulate it.
Here are some highlights:
- Texas passed comprehensive reform requiring prosecutors to track and disclose their informants’ criminal history, past testimony, and benefits. The New York Times called it “the most comprehensive effort yet to rein in the dangers of transactional snitching.”
- Andrew’s Law in North Dakota prohibits campus police from using students as informants. State police may only use informants with a written agreement. Of particular note, Andrew’s Law bans the use of child informants under the age of 16, one of very few states to do so.
- Illinois came very close to re-instituting reliability hearings. The state previously required them in capital cases: now that Illinois no longer has the death penalty this bill will require pretrial hearings for all jailhouse informants.
- Montana’s Senate Bill 249 introduced comprehensive legislation that would require, among other things, electronic recording of informant statements, greater prosecutorial disclosure, pretrial reliability hearings, and cautionary jury instructions.
- Washington recently considered two bills. One from 2016 would have required pretrial reliability hearings in all informant cases. The other would have required enhanced prosecutorial disclosure. Barry Scheck, founder and director of the Innocence Project, wrote that the Washington legislation was a “key advance” and that it represented an opportunity to “ensure that the strongest protections are in place for the innocent.”
This wave of new reform has been a long time coming.
The innocence movement warned us for years that criminal informants are a leading cause of wrongful conviction. In Orange County, California, a multi-year ongoing jailhouse snitch scandal has derailed numerous homicide and gang cases and triggered a federal investigation.
Almost every week brings a new media story about an informant case gone awry. Criminal informants have historically been secretive and under-regulated; today, this problematic law enforcement practice is getting its much-deserved day in the sun.
Snitching will never be the same.
Alexandra Natapoff is Professor of Law at the University of California, Irvine School of Law. She is a national expert on the use of criminal informants, author of Snitching: Criminal Informants and the Erosion of American Justice (NYU Press 2009), and runs the educational resource website Snitching.Org. She welcomes comments from readers.