NEGATIVE INCENTIVES INVOLVED IN GOVERNMENT SPONSORED "SNITCHING"

INTRO

What if the system isn’t run properly? What if the use of informants by police is not as well regulated as it could be?

Within the widespread use of informants in criminal cases, law enforcement officials and prosecutors are the facilitators of the system. Law enforcement officials and prosecutors maintain files on informants and coordinate deals with possible cooperators. Therefore, these authorities have the responsibility to make sure that the use of informants does not become an injustice to those facing criminal charges. In United States v. Bernal-Obeso, 989 F.2d 331 (9th Cir. 1993), a man appealed his conviction on charges of conspiracy to posses a controlled substance and possession of a controlled substance with intent to distribute, as well as aiding and abetting charges. The court's opinion describes the important responsibility that prosecutors have in dealing with rewarded criminals, stating "A prosecutor who does not appreciate the perils of using rewarded criminals as witnesses risks compromising the truth-seeking mission of our criminal justice system. Because the Government decides whether and when to use such witnesses, and what, if anything, to give them for their service, the Government stands uniquely positioned to guard against perfidy. By its action the Government can either contribute to or eliminate the problem. Accordingly, we expect prosecutors and investigators to take all reasonable measures to safeguard the system against treachery. Id. at 333-34. The Ninth circuit is correct in identifying prosecutors and investigators as the those in the best position to make sure that the witnesses they use are credible.

But what if there are tremendous incentives and pressures that cause both criminals, as well as law enforcement personnel to misuse the system for their own personal benefit?

In many instances, informants in criminal cases don’t offer law enforcement personnel information against other criminals out of the goodness of their own hearts. Rather, they strike deals with law enforcement to provide information about other criminals, usually in return for reduced prison sentences. They offer substantial information as “credible sources” to aid authorities in the arrest and conviction of others. Ironically, the same individuals whom the federal government doesn’t believe are telling the truth about their own criminal activities are set forth as valuable, trustworthy sources in stories regarding other people’s criminal activities. The negative incentives flow both ways. Criminals are given an incentive to make up information regarding others for their own personal gain and law enforcement officials have the incentive to use these “trustworthy” sources to bolster their cases against other individuals and keep conviction rates high and sentences long. Any effort to improve the criminal justice system, specifically prosecutors’ use of rewarded witnesses, should focus on creating a system where the negative incentives for prosecutors and witnesses are limited, as to not undermine the criminal justice system. This reform effort could seek to limit the rewards that witnesses are allowed to receive and also institute harsher punishment for prosecutors and criminals engaging in the transaction for false witness testimony or information.

INCENTIVES FOR CRIMINALS

The federal informant procedures in place currently create incentives for criminals to provide information to law enforcement under false pretenses. In this system, “information” that can lead to an arrest becomes a commodity, to be traded with law enforcement for reduced sentences or to be sold to other criminals to be used as bargaining chips with the federal government. (For a an illustration of this marketplace in action See Snitch Market Illustration. While in many prisons it is generally prohibited for inmates to buy, sell, or trade items purchased on commissary, the marketplace for information only adds to the number of conflicts that can arise in prison due to black market disagreements and “deals gone bad”. The highly sought rewards for being a witness or offering information undermine prisons’ attempts to limit the accumulation of “wealth” inside institutions. In this way, information about the outside world becomes a commodity in prisons, bought, sold, stolen, and possibly even counterfeited.

Some informants are even allowed to stay on the streets (in many cases committing crimes with a certain level of impunity) merely because they are willing to give up information on competitors and other criminals. Communities suffer when law enforcement tolerates crimes committed by cooperating offenders, whether it is drug use, property crimes, or violence. Criminals that are willing to give up information on others are compelled to store information on others (or fabricate it) and hold on to that information to use whenever they are caught breaking the law. Does this system seem like a good idea for stopping crime? Probably not. And while the espionage-like tactics involving the use of information as a tool for survival are well established in the world of CIA agents and other highly trained personnel, in the criminal justice system, the information gathering and disseminating is being done by untrained individuals. Use of Confidential Informants Mostly Unregulated: NPR. Imagine the United States government sending an ill-prepared, untrained, recent college grad on a mission to obtain information about weapons smuggling in Syria. It probably wouldn’t happen. (And even if this type of foolish action was procedure throughout government institutions involved in social conflicts, the prevalence of bad-decision making doesn’t somehow transform it into good decision-making).

Proponents for the use of informants like to think of the system as a way to get greater numbers and a greater caliber of criminal off of the street. However, this perception assumes that all of the information obtained from these informants is true. Imagine a person in prison convicted of selling drugs. If this person has knowledge of another individual who sells drugs he may alert authorities and make a deal to cooperate in the investigation of that individual. Although the prisoner may have never interacted with the target of the police investigation, the prisoner has every incentive to take the stand as a witness and testify to being involved in illegal operations with the targeted individual and prosecutors have every incentive to allow that testimony to go forward. “Who cares? They are criminals anyway! They chose to be involved in criminal activity so they should be aware that there is no honor amongst thieves.” Such a “make your bed now lay in it” attitude may seem fit for the situation of criminals testifying against criminals for reduced sentences. However, that feeling seems to assume the guilt of criminals before they have been tried in court. The real problem comes from the judicial system playing a role in a market as unethical as the one that exists between prosecutors and many informants. Surely if there is no honor amongst thieves, there must be some remnant of it within the criminal justice system. If all information received by informants was painstakingly and precisely verified then it would be a much improved system (perhaps still not perfect). Unfortunately out system is not so fine-tuned and to just ignore such a violation of people’s security and freedom is extremely unjust.

If juries and judges were unbiased, completely neutral, and did not have their own per-conceived ideas about the people who are tried in many cases, then it could be assumed that any “shaky” witnesses would be given little if no merit and any information that was questionably obtained or possibly fabricated would also be subject to great scrutiny; however, that is not always the case. In a case where the jury has a per-conceived notions about the defendant (let’s say a majority white jury from a predominantly white neighborhood and a Black defendant with corn rows and tattoos) ‘shaky” witnesses and questionable evidence are likely to be far more believable and accepted as truth. Fate of Black Defendants May Rest with Juror Backgrounds. Although it would be unreasonable to ask the criminal justice system to eliminate the hidden prejudices of the entire jury pool (questions posed to potential jurors during jury selection don't always reveal these biases, which may many times be unknown to the juror as well), it is not unreasonable to urge the criminal justice system to expend more effort in making sure that evidence and witnesses that should never see the courtroom, in fact never make it that far.

INCENTIVES FOR PROSECUTORS

Prosecutors also become entangled in this system of injustice. For example, an ambitious prosecutor may be compelled to strike a deal with a dangerous criminal in order to secure the conviction of another more high-profile defendant. This system allows for a deal to be struck with a person who admits to nineteen murders, in order to secure the conviction of a “big fish”. See Gravano & Gotti

Undoubtedly prosecutors have pressure to keep conviction rates high. See http://www.tdcaa.com/journal/prosecuting-under-pressure. The benefits of securing high profile convictions are also tantalizing for attorneys. Therefore, the role of the prosecutor becomes about wins and not about deterrence, rehabilitation, retribution, or any other proposed justification for the criminal justice system when improper use of informants is rampant.

The negative incentives even trickle down to local police departments, with police officers committing perjury and engaging in illegal tactics in order to keep statistics high and cash from federal funding flowing in. See Why Police Lie Under Oath.

Conclusion

As outsiders looking into the system (or even as prosecutors within the system) it is easy to feel as if this type of system isn’t such a bad idea. Maybe some individuals are even largely unaware that the “snitching” marketplace exists. Unfortunately, those who suffer because of this poorly operated system don’t have the luxury of being unaware of the system. Innocense Project. Another attempt to justify the status quo in society’s current system is to write the occurrence of false testimony as something that can’t be fixed or that doesn’t happen that often, although organization such as the Innocence project might have a different perception of reality.

No criminal punishment system is perfect. Even still, to turn a blind eye to the injustice that is prevalent in the criminal justice system’s use of informants is disgraceful. . The reality is that it would be foolish to throw the baby out with the bath water and completely eliminate the use of testimony from criminals and paid police informants. Many cases are solved using these witnesses in a way that preserves justice and allows for a fair process for those facing criminal charges. What must be considered is a system better regulated and more efficient at ensuring that the information provided by witnesses and informants are not lies, created to to serve the interests of prosecutors and criminals.

It is undeniable that many, if not all witnesses have personal motives; however, what the criminal justice system should not do is make it easy, and in some cases lucrative for individuals to misuse the justice system. Although a witness might not always be inspired by the prospect of helping the system obtain justice in a particular case, it would be nice if there were more efforts towards preventing witnesses from purposely seeking injustice.

-- ChristopherWilds - 09 Apr 2013