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The Judicial Conference—a national body that makes policy for the federal court system—has expressed concerns about the security of informants in the federal system. Evidently, around 700 cooperating witnesses and jailhouse informants (sometimes referred to as “snitches”) have been targeted with threats and violence in a recent three-year period. In its effort to better protect these individuals, the Conference is considering a range of policy options, including limiting public access to federal court docket information and sealing Government filings that signal someone has cooperated. What the Conference takes for granted, it seems, is that the growing scale of the problem reflects increased criminal activity. But, what if it also reveals Government overreliance on this type of witness? Perhaps there are some low-cost policies that will give snitches a greater degree of physical safety. The deeper problem, however, is that the entire federal justice system has been warped to accommodate an inherently unreliable source of information. More emphasis should be put on incentivizing better law enforcement investigation, and less on deepening the system’s commitment to a particularly slippery brand of justice.

If anyone harbors doubts that the federal system is built upon relationships with informants, this 2012 USA Today study should alleviate them. According to an expansive review the publication conducted, at least one in eight federal inmates, nearly 49,000 of them, obtained sentence reductions in exchange for providing information about other defendants. The study dug into “a vast and almost always secret part of the federal criminal justice system in which prosecutors routinely use the promise of reduced prison time to reward prisoners who help federal agents build cases against other criminals.” The Government’s profound reliance on snitches is troubling when one considers the powerful incentives that could motivate an informant to produce evidence favorable to prosecutors: “The deals can chop a decade or more off of their sentences.” A man on the wrong end of a case involving snitch information summarized it well: “‘If someone says you can go home today if you say that box is blue,’ he said, stabbing a thick finger at a big, white cardboard box in the corner of the office and grinning, ‘then that box is blue.’”

Some prosecutors have publicly stated that informants occupy a central role in the federal system. In an excellent 2014 Pittsburgh Post-Gazette article, then-US Attorney David Hickton, whose office prosecuted around 3,000 people in the preceding five years, “said cooperators, including informants, ‘are essential to obtaining convictions in nearly all significant cases.’” The article identifies the system’s key dynamics, which are self-perpetuating. Potentially harsh sentencing outcomes combine with limited pre-trial information about an informant’s identity to compel most defendants to take a plea rather than risk extra punishment that would accompany a negative verdict. Quoting a federal public defender, the Post-Gazette piece states that “because of the draconian penalties on one hand and the imperfect information on the other, federal prosecutors can file ‘weak cases, but they plead out anyway.’” The process perpetuates itself when inmates who already have long sentences then seek opportunities to cooperate in order to reduce that time. The USA Today story underscores this theme, observing that “[o]ften, becoming an informant is the only chance defendants have.”

The core problem with informant testimony is that it is highly unreliable. Even knowing this, law enforcement often goes to great lengths to keep evidence of that unreliability under wraps. Additionally, deals with informants often go undisclosed, in violation of the prosecution’s Brady obligation. These realities have emerged in a significant number of cases covered on our website. Consider, for example:

  • An Oregon case in which an informant committed numerous crimes around the country without being fired by the Portland Police. When the informant’s activities were revealed, prosecutors dismissed several cases in which he testified.
  • A Georgia case in which the State permitted the informant to falsely testify that he had not sought any leniency from the prosecution in exchange for his testimony. The State’s lawyers went further: “In sum, then, the state in this case solicited the lies of a jailhouse informant on the stand; suppressed a witness who would have contradicted that informant; and hid documentary evidence that the informant was lying about the sequence of events leading to his testimony.”
  • And, of course, there is the ongoing Orange County Snitch Scandal that has been rocking the criminal justice system there for years now.

As we noted in the post about the Oregon case,

the scale and sheer audacity of the law-breaking by prosecutors in Orange County shouldn’t in any way obscure the fact that the failure to disclose to defense counsel information about snitches, and how their testimony was come by, is not a sensational exception, but an endemic feature of our criminal justice system.

Simply put, while the Judicial Conference may have valid reasons to improve informant safety, it appears to be missing the forest for the trees. Moreover, the proposals it is reportedly considering—limiting public access to PACER (the federal courts’ electronic records system) and sealing more motions—have significant drawbacks. For one, these restrictions would have First Amendment media and free speech implications. They also may infringe directly or indirectly on defendant’s constitutional rights. In the words of the blogger at Grits for Breakfast: “There’s a reason court documents are public records in this country: The US Constitution insists that every defendant has a right to a public trial, as well as a right to confront their accuser.”

On top of the constitutional problems these proposals stoke, they reflect a move in the wrong direction when it comes to criminal justice policy. As Katie Townsend, litigation director of the Reporters Committee for Freedom of the Press, told Andrew Cohen of The Marshall Project:

If this rule is adopted it will deprive the public of key information needed to understand and evaluate how the criminal justice system is operating, both in individual cases and as a whole. Because cooperation (or non-cooperation) can often have a significant impact on whether a defendant pleads guilty, or whether a defendant receives a lenient or harsh sentence, depriving the public of this information in all cases will prevent the public from ever knowing the reasons that a criminal defendant received the sentence he or she received. That is completely antithetical to the idea of a transparent criminal justice system.

Or, as Grits for Breakfast put it: “Diminishing the public’s access to those records diminishes accountability for law enforcement at a time when there’s ample evidence greater accountability is needed.”

The details of the proposals under consideration by the Judicial Conference are important, but they should not overshadow the bigger issue. Our justice system must find ways to address the detrimental effects of unreliable snitch testimony, or, better yet, prevent its use altogether. Prevention is on prosecutors. They have the power to eliminate or dramatically reduce the use of informants. They can push investigators to unearth better evidence rather than relying on snitches to give them an easy out. They can agree to allow courts to decide before trial whether a particular witness is sufficiently reliable. The tools exist, but the will is missing in most instances. A New York Times editorial from mid-July applauds major reforms advancing in Texas. While these changes are promising, the Editorial Board drives home the key point:

A better solution would be to bar the use of compensated informants outright . . . . Some states have begun to require that judges hold hearings to test an informant’s reliability, much as they would test an expert witness’s knowledge — before the jury can hear from him. But the deeper fix that’s needed is a cultural one. Many prosecutors are far too willing to present testimony from people they would never trust under ordinary circumstances. Until prosecutors are more concerned with doing justice than with winning convictions, even the most well-intentioned laws will fall short.

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