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«ARTICLE BRASS RINGS AND RED-HEADED STEPCHILDREN: PROTECTING ACTIVE CRIMINAL INFORMANTS * MICHAEL L. RICH Informants are valued law enforcement tools, ...»

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ARTICLE

BRASS RINGS AND RED-HEADED

STEPCHILDREN: PROTECTING ACTIVE

CRIMINAL INFORMANTS

*

MICHAEL L. RICH

Informants are valued law enforcement tools, and active criminal informants— criminals who maintain their illicit connections and feed evidence to the police in exchange for leniency—are the most prized of all. Yet society does little to protect active criminal informants from the substantial risks inherent in their recruitment and cooperation. As I have explored elsewhere, society’s apathy toward these informants is a result of distaste with their disloyalty and a concern that protecting them will undermine law enforcement effectiveness. This Article takes a different tack, however, building on existing scholarship on vulnerability and paternalism to argue that society has a duty to protect some vulnerable informant interests. In particular, I assess informant vulnerabilities against accepted societal norms to determine which informants deserve greatest protection and balance informant autonomy interests against informant interests in avoiding harm.

Against this backdrop, I propose safeguards to protect the vulnerable safety and autonomy interests of active criminal informants that most deserve society’s protection

while minimally interfering with law enforcement effectiveness. The proposals include:

requiring court approval for the use of particularly vulnerable active informants and prosecutorial consent for the use of all others; providing training for informants and law enforcement agents in minimizing the risks of harm from cooperation; and folding informants into existing workers’ compensation schemes.

* Assistant Professor of Law, Elon University School of Law. B.A., University of Delaware; J.D., Stanford Law School. I am indebted to Andrea Dennis, Melanie Wilson, Caren Morrison, Andy Haile, Dave Levine, Sonya Garza, and Eric Fink for their helpful comments, to Amy Minardo for her comments and tireless support, and to Heather Sangtinette and Erin Stubbs for their research assistance.

1433 RICH.OFF.TO.PRINTER (DO NOT DELETE)  6/14/2012  7:14 PM  1434 AMERICAN UNIVERSITY LAW REVIEW [Vol. 61:1433

TABLE OF CONTENTS

Introduction

I. Active Criminal Informants

A. Use of Active Criminal Informants

B. Recruitment of Criminal Informants

C. Disdain for Active Criminal Informants

II. Protecting the Vulnerable

A. Society’s General Duty to Protect the Vulnerable..........1446 B. Defining Vulnerability

C. Identifying the Vulnerabilities Entitled to Society’s Protection

1. The importance of choice

2. Socially-beneficial activities

III. The Vulnerabilities of Active Criminal Informants...............1453 A. Systemic Vulnerabilities

1. The vulnerable interest in avoiding punishment......1454

2. The vulnerable interest in being free from harm.....1454

3. The vulnerable interest in autonomy

a. The coercive threat of criminal sanctions...........1459 b. The State’s superior bargaining position............1462 c. Information asymmetry

d. Unenforceability

B. Individual Vulnerabilities

IV. Paternalism and Moral Harm

A. The Problem of Moral Harm

B. How Much Paternalism?

V. Current Protections for Active Criminal Informants............1479 A. Witness Protection Programs

B. Internal Law Enforcement Policies

C. Legal Action

1. Civil claims

2. Arguments in an informant’s criminal case..............1487 VI. Protecting Active Criminal Informants

A. Providing Counsel to Potential Informants

B. Court Approval for the Use of Particularly Vulnerable Informants

1. Juvenile informants

2. Mentally ill and mentally handicapped informants

3. Drug-addicted informants

C. Remedying Information Asymmetries

D. Training Police and Informants to Minimize Risk.........1497 E. Including Informants in Existing Workers’ Compensation Schemes

Conclusion

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–  –  –

1. See JOHN MADINGER, CONFIDENTIAL INFORMANT: LAW ENFORCEMENT’S MOST

VALUABLE TOOL 27 (2000) (noting “the tremendous usefulness of informants in resolving crimes”); STEPHEN L. MALLORY, INFORMANTS: DEVELOPMENT AND MANAGEMENT, at ix (2000) (“After 24 years in the profession of drug enforcement, extensive training, and continuous education, I have reached the same conclusion as many criminal investigators regarding informants—successful investigations are dependent on informant development.”); CARMINE J. MOTTO & DALE L. JUNE, UNDERCOVER 13 (2d ed. 2000) (“Informants are a very necessary part of police work and most agencies would be at a loss to operate without them.”); see also DELORES

JONES-BROWN & JON M. SHANE, AM. CIVIL LIBERTIES UNION, AN EXPLORATORY STUDY OF





THE USE OF CONFIDENTIAL INFORMANTS IN NEW JERSEY 3 (2011) [hereinafter ACLU STUDY] (“In some law enforcement agencies, the research revealed a substantial use of information from CIs, rather than independent police work, as part of the routine investigation of drug activity.”).

2. MADINGER, supra note 1, at 29.

3. See infra Part I.A (describing how law enforcement uses criminal informants).

4. Criminal informants are those informants that cooperate with police in exchange for leniency, often motivated by the fear of incarceration. MADINGER, supra note 1, at 51.

5. In common parlance, a red-headed stepchild is one “who is neglected, mistreated or unwanted.” Michael Quinion, Red-Headed Stepchild, WORLD WIDE WORDS (Aug. 6, 2011), http://www.worldwidewords.org/qa/qa-red2.htm.

6. See infra Part III.A.1 (illustrating the unique societal and situational vulnerabilities of criminal informants).

7. See infra Part V (explaining the current protections criminal informants receive and the limitations of such protections).

8. See infra Part III.A.3 (noting how coercion, usually stemming from fear of criminal sanctions, can be used to recruit criminal informants).

9. See infra Part III.B.

10. See infra Part V.B (detailing the inadequate protections provided to criminal RICH.OFF.TO.PRINTER (DO NOT DELETE)  6/14/2012  7:14 PM 

1436 AMERICAN UNIVERSITY LAW REVIEW [Vol. 61:1433

Why would society fail to protect such valuable law enforcement assets? First, informants are treated poorly because, to put it bluntly, 11 society dislikes them. By assisting the police in apprehending their associates and friends, informants commit the egregious sin of 12 betrayal. The resulting disdain is heightened with respect to criminal informants because they are criminals who betray others for 13 the purely selfish purpose of obtaining leniency. Second, though active criminal informants are valuable to police, they are often 14 fungible. Though the criminal connections of the low-level criminals who frequently become informants are useful, many others 15 typically share these criminal connections. Moreover, the benefits of cooperating with the police are substantial enough to entice a continuous stream of criminals to cooperate, notwithstanding the 16 risks.

Though society’s disdain for informants is understandable, the failure to protect them is unjustified. Society has a widely-accepted 17 obligation to protect its most vulnerable members, and informants informants in their dealings with agents).

11. See, e.g., MOTTO & JUNE, supra note 1, at 13 (“‘Rat,’ ‘squeal,’ ‘stool,’ ‘canary,’ ‘fink,’ ‘snitch,’ ‘narc,’ and variations of these words are only a few of the less-than[respectful terms that have been used to designate one who gives information to enforcement or investigative agencies.”).

12. See Bret D. Asbury, Anti-Snitching Norms and Community Loyalty, 89 OR. L. REV.

1257, 1269 (2011) (explaining that for an informant to have knowledge of criminal activity, the informant must have earned the trust of the criminal, a trust the informant violates); Michael L. Rich, Lessons of Disloyalty in the World of Criminal Informants, 49 AM. CRIM. L. REV. (forthcoming 2012) (manuscript at 16–17), available at http://ssrn.com/abstract=1722597 (discussing how members of society, especially in high crime neighborhoods, possess an unfavorable view of informants’ breaches of loyalty).

13. See ALEXANDRA NATAPOFF, SNITCHING: CRIMINAL INFORMANTS AND THE EROSION

OF AMERICAN JUSTICE 39 (2009) (establishing that the criminal system is relatively

unsympathetic toward criminal offenders); Michael A. Simons, Retribution for Rats:

Cooperation, Punishment, and Atonement, 56 VAND. L. REV. 1, 28–29 (2003) (asserting that criminal informants are like Judas, but are paid in leniency rather than money).

14. On the other hand, high-level criminal informants, such as those glamorized in popular culture, are difficult, if not impossible, to replace. See, e.g., GOODFELLAS (Warner Bros. Pictures 1990) (telling the fictionalized story of Henry Hill, a former mobster who became a government informant); THE INFORMANT! (Warner Bros.

Pictures 2009) (recounting the experience of Mark Whitacre, an executive at Archer Daniels Midland, who provided the FBI with information about his employer’s criminal price-fixing scheme). For this reason, witness protection programs are tailored to protect them. See infra Part V.A (detailing the components of witness protection programs).

15. See MALLORY, supra note 1, at 8–10 (describing the utility of informant connections).

16. Estimates have placed the number of informants who are active at any given time in the hundreds of thousands. See, e.g., Alexandra Natapoff, Snitching: The Institutional and Communal Consequences, 73 U. CIN. L. REV. 645, 657 (2004).

17. See infra Part II.A (describing the political, legal, and philosophical schools of thought that support society’s duty to protect the vulnerable). The assertion that RICH.OFF.TO.PRINTER (DO NOT DELETE)  6/14/2012  7:14 PM  2012] PROTECTING ACTIVE CRIMINAL INFORMANTS 1437 18 are often quite vulnerable. This duty is enhanced when an individual’s vulnerabilities are the result of her engagement in socially-beneficial activities; the active criminal informant’s 19 cooperation falls into that category. It is easy to muster the political will to protect those who are vulnerable and sympathetic, but society also must protect those who, like criminal informants, are repugnant 20 to the majority.

But to identify active criminal informants as vulnerable and to recognize a normative obligation to protect them raises more questions: Does society have a duty to protect all vulnerable informant interests? Is there a hierarchy among interests such that society has a greater duty to protect some more than others? What should happen when protecting one informant interest endangers another? In particular, to what extent should society impinge on the autonomy interests of an informant in order to protect her safety interests? Finally, if there is a duty to protect some informant interests, how should society satisfy that duty?

In answering these questions, this Article proceeds as follows. Part I briefly describes the role of the active criminal informant in the criminal justice system. Part II explores society’s duty to protect the vulnerable and examines societal norms suggesting that the society has a duty to protect the vulnerable must be distinguished from the position that government has such a duty. The concept of a governmental duty, a special application of societal duties, was rejected by the Supreme Court in DeShaney v.

Winnebago County Department of Social Services, 489 U.S. 189 (1989).

18. Interestingly, the informants who receive the greatest amount of media attention are often those who are the least vulnerable. A recent example of this focused media attention is the publicity surrounding the capture of Whitey Bulger, a Boston gangster and FBI informant who cannot be fairly described as vulnerable. See Adam Nagourney & Abby Goodnough, Long Elusive, Irish Mob Legend Ended Up a California Recluse, N.Y. TIMES, June 24, 2011, at A1. Bulger used his status as an FBI informant as a cover for his commission of a wide range of crimes over more than a decade, including drug trafficking, extortion, and murder. See generally United States v. Salemme, 91 F. Supp. 2d 141, 175–315 (D. Mass. 1999) (recounting at length findings of fact regarding Bulger’s time as an FBI informant), rev’d in part sub nom.

United States v. Flemmi, 225 F.3d 78 (1st Cir. 2000). Bulger’s relationship with his FBI handler, John J. Connolly, Jr., led to Connolly’s conviction on corruption charges. See Fox Butterfield, Ex-F.B.I. Agent Sentenced for Helping Mob Leaders, N.Y.

TIMES, Sept. 17, 2002, at A22. The media attention paid to the few informants, like Bulger, who effectively game the informant system to their benefit, likely makes protection of the vast majority of informants even less popular.

19. See infra Part III.B (illustrating the personal characteristics of criminal informants that may make them even more vulnerable).

20. For this reason, one of the goals of the Bill of Rights was to fulfill society’s obligation to protect unpopular and minority interests from oppression by the majority. See Feldman v. United States, 322 U.S. 487, 501 (1944) (Black, J., dissenting) (“The founders of our federal government were too close to oppressions and persecutions of the unorthodox, the unpopular, and the less influential, to trust even elected representatives with unlimited powers of control over the individual.”).

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