Lessons of Disloyalty in the World of Criminal Informants

Beginning of article

ABSTRACT

Without informants, policing would grind to a halt. The majority of drug and organized crime prosecutions hinge on the assistance of confidential informants, and white collar prosecutions and anti-terrorism investigations increasingly depend on them. Yet society, by and large, hates informants. The epithets used to describe them--"snitch," "rat," and "weasel," among others--suggest the reason: the informant, by assisting the police, is guilty of betrayal. And betrayal is, in the words of George Fletcher, "one of the basic sins of our civilization." (1) But identifying disloyalty as the reason for society's disdain raises more questions than it answers. Are all informants disloyal, or only some? Are there governing principles to distinguish those informants who are disloyal from those who are not? To whom are these informants disloyal? What import does an informant's disloyalty have beyond the social stigma on the informant? These questions matter because informants are crucial cogs in the law enforcement machine, but they have largely escaped the attention of legal scholars.

This Article seeks to remedy this oversight. First, it explores how disloyalty functions in today's society by looking to the observations of philosophers and legal scholars who have considered the nature of loyalty and disloyalty as moral constructs. The Article then examines three scenarios that suggest insights into when and why informants are considered disloyal. The first is the case of an accomplice-informant who assists police in apprehending and prosecuting her partners in crime. The second scenario is that of a community with particularized norms against cooperating with the police, with a focus on the "Stop Snitching" movement that has become increasingly influential in high-crime communities. The third scenario looks at informants in the rest of society, where particularized norms against assisting the police do not govern. The analysis of these scenarios reveals that issues of disloyalty arising from the use of informants intersect with and inform sociological research on the marginalization of communities and the impact of police legitimacy on civilian cooperation and compliance with the law, as well as scholarly concerns about overcriminalization.

The Article then makes three policy proposals that aim to enhance civilian cooperation with law enforcement without undermining police effectiveness. First, it is proposed that police and prosecutors amend their informant screening guidelines to explicitly and publicly require consideration of loyalty issues arising from the use of a given informant. Public acknowledgement in this manner that law enforcement officials share important community values would encourage voluntary cooperation with police and compliance with the law. Second, law enforcement policymakers should curtail informant recruitment in marginalized communities that are home to anti-cooperation norms in favor of alternative policing strategies, as current policies that encourage the widespread use of informants undermine police-community relations in these communities. Finally, lawmakers should limit the use of initiatives, derogatorily called "snitch lines," that encourage civilians to report minor crimes and noncriminal suspicious behavior, and consider decriminalizing some minor regulatory-type offenses. Mainstream society's dissatisfaction with these programs, expressed in the harsh language of disloyalty, suggests discomfort with the snitch lines themselves, as well as the criminalization of the relatively minor offenses that they target.

TABLE OF CONTENTS

INTRODUCTION

  I. THE PHILOSOPHY OF LOYALTY AND DISLOYALTY
     A. Basic Questions About Loyalty
     B. What Is the Value of Loyalty?
     C. What Is Disloyalty?
     D. What Is the Moral Status of Disloyalty?

 II. SPECIFIC INFORMANT SCENARIOS
     A. The Accomplice-Informant
     B. Disapproval of Informing in Specific Communities
        1. The "Stop Snitching" Movement and
           Anti-Cooperation Norms
        2. A Loyalty Analysis
        3. Anti-Cooperation Norms in Other Communities
     C. Informing in the Rest of Society
        1. When Does an Informant Become a "Snitch" in
           Society-at-Large?
           a. Are There "Snitches" in Mainstream Society?
           b. When Is an Informant a "Snitch" in Mainstream
              Society?
        2. A Loyalty Analysis

III. POLICY RECOMMENDATIONS
     A. Explicit Consideration of Loyalty Issues in Informant
        Screening
     B. Consideration of Community-Specific Norms in the Use of
        Informants
     C. Restriction on the Creation and Enforcement of Minor
        Offenses

CONCLUSION

INTRODUCTION

If society based its measure of criminal informants--a term used here in its broadest sense to include any person, criminal or not, who assists police in apprehending criminals (2)--solely on their usefulness to law enforcement, they would be lauded as heroes. (3) Their centrality to effective drug enforcement and the infiltration of organized crime syndicates is a truism, acknowledged by the law enforcement community and reflected widely in popular culture. (4) Indeed, informants play a crucial role in all areas of criminal law enforcement, (5) and their importance is increasing in the growing areas of counterterrorism and white collar prosecutions. (6) Simply put, many areas of law enforcement today would come to a virtual standstill without the cooperation of confidential informants.

But society's view of informants is at best ambivalent and often hostile. (7) American idiom is replete with epithets for those who assist the police: they are "snitches," "rats," "weasels," "stool pigeons," and "squealers." (8) Children learn at an early age that if they report wrongdoing to teachers and parents, they may not be seen as good citizens, but as "tattletales." (9) T-shirts featuring slogans like, "Stop Snitching," are sold in shops and online and banned in courts, (10) and defendants have been convicted of witness tampering for the threat implicit in the phrase, "snitches get stitches." (11) It Most strikingly, where these epithets were once hurled predominately at those who assist the police in exchange for leniency for their own crimes, they are now applied to innocent civilians who help the police. (12)

This apparent contradiction--that some of society's most valuable and frequently utilized crime-fighting tools are also the subject of frequent disdain--has received scarce examination by legal commentators. (13) The explanation for society's distaste is that many informants are judged by society, or some portion thereof, to have acted disloyally by assisting police, (14) and the words used to convey society's scorn for informants--"snitch," (15) "rat," (16) "stool pigeon," (17)--confirm as much. Yet those who recognize that informants engage in treachery rarely explore why this is the case, (18) and a consistent logic to explain how and why an informant commits betrayal is not evident.

Certainly, an informant's disloyalty is most obvious when she offers to testify against her accomplice in exchange for a more lenient punishment. (19) But even then, things are not as straightforward as they might seem. Rather than being viewed as a breach of loyalty, the accomplice-informant's decision to cooperate could be conceptualized instead as a change in the object of the informant's loyalty from a socially undesirable one--the criminal enterprise--to one that is socially appropriate--the State. Viewed from that perspective, it is less clear why the accomplice-informant is reviled by anyone other than the informant's accomplice. (20) And the analysis gets even murkier with respect to informants who have committed no crime yet are deemed disloyal when they assist the police: What duty of loyalty have they breached? To whom have they been disloyal?

This Article seeks to shed some light on these issues by looking, in Part I, to the work of philosophers and other scholars who have discussed in depth the role of loyalty and disloyalty in modern society. This examination reveals that while there is much disagreement about some specific aspects of loyalty and disloyalty, most philosophers agree on certain core concepts. (21) Most importantly, these scholars coalesce on a common definition of disloyalty and agree that, although the moral value of loyalty is uncertain, society roundly condemns disloyalty as immoral.

Part II then applies these insights to three situations in which society may condemn an informant's decision to assist the police with the goal of explaining when, how, and why the informant may be viewed as disloyal. The first situation is the prototypical case, mentioned above, of the criminal who informs on her accomplice in exchange for more lenient treatment by the State. The second is that of a noncriminal informant in a community that holds particularized norms against cooperating with the police. This discussion focuses in significant detail on the Stop Snitching movement that has chilled cooperation with the police in high-crime and largely inner-city neighborhoods, and draws lessons that can be applied to other communities that are home to particularized anti-cooperation norms. The third situation is that of an informant in society at-large, i.e., the remainder of society that does not hold particularized anti-cooperation norms. The application of philosophical insights into loyalty to these situations, a "loyalty analysis," reveals that the perceived disloyalty of informants intersects with and contributes to scholarship on the marginalization of communities, the importance of the perception of police legitimacy, and overcriminalization.

Finally, Part III draws on the previous insights to make three policy proposals that seek to help increase cooperation between police and civilians without hindering police effectiveness. First, police and prosecutors should amend their informant-screening guidelines to explicitly and publicly require that they consider loyalty issues that might arise in the use of a given informant. Second, law enforcement policymakers should curtail informant recruitment in marginalized communities that are home to anti-cooperation norms in favor of alternative policing strategies. Third, lawmakers should curtail the use of initiatives, often criticized as snitch lines, that encourage civilians to report minor crimes, and consider decriminalizing some minor regulatory-type offenses. These proposals are crafted with the goal of being as politically feasible as possible given the general reticence to any interference with law enforcement discretion in the handling of informants.

I. THE PHILOSOPHY OF LOYALTY AND DISLOYALTY

Loyalty inhabits a unique role in society. On one hand, it is the foundation of many necessary and constructive relationships among community members, from the narrow and personal, like family and friendship, to the broad and universal, such as the relationship between governments and their citizens. In this vein, John Ladd, in the Encyclopedia of Philosophy, observed, "If we could not count on the loyalty of others or give them our loyalty, social life would not only be bleak but also impossible." (22) And Alan Wolfe has listed loyalty among the "important virtues relevant to contemporary Americans," along with self-discipline, honesty, and forgiveness. (23) Yet for all of its benefits in greasing the wheels of society, loyalty also is a source of moral danger, as blind loyalty can lead to fascism and idolatry. (24)

Despite its importance, only a handful of philosophers have engaged in an in-depth discussion of loyalty as a moral construct. (25) And if the disproportionately small amount of discussion of loyalty in the philosophical literature is surprising, the short shrift given to the concept of disloyalty is astonishing. (26) Nevertheless, the available discussions identify some common understandings of loyalty and disloyalty that are useful in a discussion of society's view of informants. (27)

A. Basic Questions About Loyalty

Any attempt to define loyalty's role in society must address at least four central questions: First, what is loyalty? Second, what is a proper object of loyalty? Third, what are the obligations that it imposes on a loyal subject? And fourth, how should one resolve conflicts between loyalties? Writing more than a century ago in one of the first extensive explorations of loyalty, philosopher Josiah Royce defined it as "the willing and practical and thoroughgoing devotion of a person to cause." (28) According to Royce, this cause must be something "larger than [the individual's] private self," (29) but it nevertheless must "concern[] other men," because "[l]oyalty is social." (30) This view of loyalty as a social concept comports with the common and historical usages of the term, which typically refer to a relationship between persons. (31) For instance, in his much more recent discourse on loyalty, Simon Keller discussed at length three primary examples of loyalty--friendship, patriotism, and filial duty--all of which involve relationships between people. (32)

In addition to being social, loyalty is specific: a person is not loyal to families, communities, or coworkers generally, but to her family, her community, or her coworkers. (33) Loyalty arises, then, not from some particular personal characteristics of the individual, but from the relationship between the individual and the object of her loyalty. (34) To take a more specific example, if Jane is loyal to her father, Frank, it is not because Frank is decent, honest, and compassionate; it is because Frank is her father. (35)

George Fletcher, in the leading account of loyalty by a legal academic, has taken this focus on relationships a step further, arguing that relationships that give rise to feelings of loyalty are "logically prior" to the individual, which is Fletcher's way of saying that an individual's "historical self'--her relationships with families, groups, and nations--generates her duties of loyalty. (36) Some such relationships come about by choice, while others are thrust upon the individual by birth, history, or experience. (37) Obvious examples of the former include marriage, friendships, and membership in political or social organizations. (38) Citizenship, family relationships, and cultural affiliations fall into the latter category. (39) Fletcher's work makes the point, however, that often the absence of choice does not make the pull of loyalty any less strong, as many of the strongest loyalties are those about which the individual has little or no choice. (40) Likewise, an individual's unwitting membership in a group may give rise to an expectation of loyalty that the individual has no desire or intention to honor. (41)

The duties imposed by loyalty can vary greatly. Royce, as noted earlier, has stated that loyalty is an all-consuming devotion, as exemplified by the religious martyr, the patriot giving his life to his country, and the ship captain who is the last man off a sinking ship. (42) Fletcher and Keller have presented more moderate accounts. Fletcher contends that the duties of loyalty range along a spectrum "between minimal and maximal demands." (43) At the lower end, minimal loyalty requires only that an individual not betray the object of loyalty. (44) The classic example of minimal loyalty is the traditional requirement in a romantic relationship that neither participant will pursue another romantic entanglement. (45) Maximal loyalty, on the other hand, requires affirmative devotion to the object of loyalty (46) and is exemplified by the relationship between a patriot and his country. (47) Keller views loyalty even more broadly to encompass any "attitude of positive regard" toward the object of loyalty, including prioritizing its interests over those of competitors, advocating on its behalf, honoring it through ritual, or holding beliefs favorable to it. (48) Despite their differences, Fletcher and Keller agree that the particular demands of a loyalty relationship on its subject depend on the nature of that relationship. (49)

Of course, at any given time an individual is loyal to a number of different individuals and groups. For instance, a typical person may be simultaneously loyal to, for example, her spouse, her parents, her political party, her ethnic group, her country, her church, her school, her favorite college football team, and her neighborhood. (50) Fletcher conceives of these loyalties as "a set of intersecting circles of loyal commitment." (51) And as this metaphor of intersection suggests, an individual's loyalties inevitably clash, which raises the question of how to resolve such a conflict between loyalties. (52)

Fletcher has no firm answer to this question, noting instead that being forced to choose between conflicting loyalties is a "tragic" part of human existence. (53) Ultimately, the most satisfying, if inconclusive, answer to the question of how to resolve conflicting loyalties is found in the Encyclopedia of Philosophy:

   There are, to be sure, conflicts of loyalties, but this fact does
   not entail that any of the loyalties involved are improper or
   invalid.... Sometimes there are clear ways of resolving these
   conflicts and sometimes there are not, but we cannot eliminate the
   problem of conflicting loyalties either by a metaphysical trick or
   by the mechanical application of a value calculus. (54)

Put another way, loyalties inevitably conflict and that conflict must be resolved, but the choice of one loyalty over another, standing alone, does not render the unchosen one any less important.

To summarize, certain common threads run through these accounts. First, loyalty is a social concept arising from relationships between and among people, some chosen and others thrust upon us. Second, loyalty at a minimum requires that the loyal subject not betray the object of loyalty. Third, the existence and nature of any specific demands of loyalty beyond non-betrayal depend on the nature of the specific relationship between the loyal subject and the object of her loyalty. And fourth, an individual's loyalties will sometimes conflict and those conflicts must be resolved, but there is no metric for the resolution of such a conflict.

B. What Is the Value of Loyalty?

These observations leave open one fundamental area of inquiry about loyalty: whether it has moral value and whether that value is qualified by the situation in which it arises. (55) At one extreme is Josiah Royce, who has argued that loyalty to loyalty is the supreme moral good. (56) Royce's exultation of loyalty is an extreme version of the more widely-held defense of loyalty, which is that it inspires people to hold a great number of other moral virtues, such as courage and generosity. (57) Many philosophers, however, suggest that at least in some situations loyalty is not a virtue and may even be a vice. One concern is that loyalty toward an immoral and undesirable person, group, or cause leads the loyal subject to take questionable actions on behalf of the object of loyalty. (58) Another is that loyalty undermines rationality and fairness, because it encourages one to make decisions based on insufficient or irrelevant bases. (59) Though resolving this overarching debate is well beyond the scope of this Article, one point of contention relevant to the case of criminal informants is whether there is some moral good to loyalty that can be divorced from loyalty's object. Put another way, is there any value in loyalty toward an unworthy object? (60)

A question paralleling that of whether loyalty is a virtue, a vice, or something else entirely, is whether loyalty is useful to society. Indeed, much of the discussion by philosophers about the value of loyalty is itself consequentialist. (61) On this point, the seminal discussion by economist Albert O. Hirschman on the value of loyalty to groups is instructive. (62) Hirschman has explained that when members of a group (63) become dissatisfied with it, they have two alternative choices: they can leave, which he terms "exit," or they can attempt to change the group's practices and policies, which he calls "voice." (64) In a world without loyalty, a dissatisfied group member with alternative options of better quality than the group and the resources to exit will leave. (65) Loyalty, however, explains why such a dissatisfied group member might choose voice over exit even when the group's quality has deteriorated well below that of other options. (66) As a result, loyalty is of particular use to deteriorating or low-quality groups because it counterbalances the tendency of the most influential members, i.e., those with the most resources to effect change within the group, to be the first to leave. (67) By activating the voice of high-resource members, loyalty gives these groups an opportunity to stop their deterioration or to regain the quality that they have lost. (68) Moreover, the importance of loyalty to a group has an inverse correlation to the group's quality, and consequently, loyalty is most important to the least desirable groups. (69)

C. What Is Disloyalty?

Within the limited realm of literature on disloyalty, Keller has provided the most thorough and convincing account. He has rejected the notion that disloyalty is the "opposite" of loyalty and instead described it as a related "moral, social, public or institutional phenomenon" in which an individual fails to meet normative expectations arising out of a special relationship between the individual and the object of loyalty. (70) For instance, a normative expectation in most friendships is that one friend will not share the secret of the other friend with a third party. Thus, if one friend reveals a secret told to her in confidence by the other, she acts disloyally, because she fails to meet that normative expectation. (71) But Keller also said that disloyalty is more than the disloyal act alone; it also requires the proper mens rea. An individual will not be considered disloyal unless she exhibits either a sufficient awareness of, or a sufficient deliberate indifference towards, her normative obligations to be held morally responsible for the failure to meet them. (72) Thus, one who values friendship but truly does not know that the keeping of a friend's confidences is a normative expectation of friendship would not be disloyal for revealing her friend's secret.

Though Fletcher has called it "betrayal," his take on disloyalty is similar. (73) Fletcher suggested that "[b]etrayal occurs only when one breaches an obligation of loyalty." (74) At a minimum, such an obligation requires that the loyal individual reject alternatives to the object of loyalty. (75) Thus, a loyal spouse must not commit adultery, and a loyal Republican must not support a Democratic candidate. Things get more complicated once more than a "minimal" loyalty is at stake, however. Then, as in Keller's conception, whether disloyalty has occurred depends on the nature of the obligations created by the loyalty at issue. (76) Likewise, Fletcher has agreed that there is a mens rea requirement for disloyalty, by which one cannot be disloyal unless one at least has the ability to understand one's obligations. (77)

In short, disloyalty is the knowing breach of normative expectations created within the specific context of the relationship between an individual and the object of her loyalty. (78) One question remains, however: whose expectations matter? Put another way, who judges whether an individual has been disloyal? Obviously, those within the relationship at issue can judge whether another party to the relationship has been disloyal. (79) But the capacity to judge the compliance of an individual with normative expectations extends to anyone with knowledge of the relationship at issue and the individual's actions. Indeed, this fact seems to be what Keller meant when he described loyalty as "a moral, social, public or institutional phenomenon." (80) Thus, in the example of the indiscreet friend, not only might the individual whose secret has been revealed consider his friend disloyal, so too might others within their circle of acquaintances who know about their friendship and the friend's disclosure of the secret.

A final point bears mentioning: because many of the special relationships that give rise to duties of loyalty are thrust upon the individual, (81) so too is the risk of being perceived as disloyal for failing to meet normative expectations arising from those relationships, regardless of whether individual accepts those expectations as valid. To make that point, Keller cited an example of a son who fails to give his jacket to his mother when they are walking together in cold weather. (82) Typically, a son is under a normative expectation to show a special concern for his mother's well-being, even though one does not choose one's mother and may in fact have no particular interest in her well-being. (83) Nevertheless, so long as the son is aware that the woman in question is his mother and knows of, or is capable of comprehending, the existence of the normative expectation, he is subject to it. (84) Thus, even if the son is justified in his apathy towards his mother, anyone who knows that he is her son and sees him fail to offer her his jacket may judge him to be disloyal.

D. What Is the Moral Status of Disloyalty?

Though the moral status of loyalty is open to debate, most scholars agree that disloyalty is always a vice. As Ewin explained, "[d]isloyalty is always regarded as a grave failing in anybody who displays it. (85) Fletcher has added, "[s]ome of the strongest moral epithets in the English language are reserved for the weak who cannot meet the threshold of loyalty: They commit adultery, betrayal, treason." (86) Indeed, according to Ewin, betrayal is despised even in those who are disloyal towards odious objects. He has pointed to the example of a Nazi who firmly believes in the extermination of Jews and nonetheless betrays the Nazi cause. (87) The disloyal Nazi is hated on at least two grounds: First, we …