Lessons of Disloyalty in the World of Criminal Informants
Rich, Michael L., American Criminal Law Review
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. …