NEGATIVE INCENTIVES INVOLVED IN GOVERNMENT SPONSORED "SNITCHING"

INTRO

Informants offer substantial information as “credible sources” to aid authorities in the arrest and conviction of others. 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.

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.

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).

“Who cares? They are criminals anyway! They have chosen 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 juries and judges were unbiased, completely neutral, and did not have their own pre-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 pre-conceived notion 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 even 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

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

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 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.

-- ChristopherWilds - 09 Apr 2013