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According to Harvard law professor Alexandra Natapoff, the leading cause of wrongful capital conviction in the United States is dependence on jailhouse snitches who lie for personal gain.
This is not a new finding. In fact, since DNA evidence became available in the 1990s, the criminal (in)justice system has been repeatedly rocked by the consequences of reliance on eye-witnesses, confidential informants and community-based or jailhouse snitches who’ve fabricated evidence, misstated facts, or exaggerated or minimized details to save their own skin.
Barry Scheck, co-founder of Innocence Project, lays out the terrain for this in his foreword to the second edition of Natapoff’s Snitching. “Informant deals are a secretive, high-risk kind of plea deal in which the government gambles on information obtained from unreliable sources in exchange for giving these sources leniency, money or other benefits,” he writes.
The consequences of these deals are, of course, enormous, and Natapoff’s research — now available in an expanded and updated version of her groundbreaking 2009 text of the same name — is a stunning chronicle of justice denied.
First, some context. Snitching has long been relied upon by law enforcement agencies, from the neighborhood police squad to the ATF, DEA and FBI, and informants have been used to get all kinds of information. As has been well-documented, police have installed informants, many of them later identified as agent provocateurs, in mosques and political groups as a way to derail potential violence and “terrorism.” But snitching extends much further than this, with the majority of tipsters providing data about street-level drug deals and a small percentage reporting about white collar crime, political corruption, corporate malfeasance or Mafia activity.
Natapoff distinguishes this from whistle blowing, since, in snitching cases, informants do not come forward voluntarily; instead, they are lured to “cooperate” by a promise of some sort, typically dropped charges or sentencing leniency after an arrest for illegal activity. At times, money, drugs or sex have also been provided.
30,000 informants currently work for the FBI and the DEA while as many as 4% of young Black men in urban centers are actively cooperating with police at any given time.
But here’s where it goes completely off the rails: “As the law currently stands,” Natapoff writes, “there is no crime for which punishment cannot be mitigated through cooperation, from speeding to murder, and no type of case in which informants cannot be used.” Even more shocking is the ubiquity of the practice. While the exact number of “confidential informants” remains a mystery, Natapoff estimates that as many as 4% of young Black men in urban centers are actively cooperating with police at any given time.
What’s more, she continues, “20 percent of all federal offenders and 45 percent of federal drug defendants cooperate in some way.” Even more shocking, these numbers do not include the approximately 30,000 “confidential informants” who currently work for the FBI and DEA.
Natapoff’s reports that these arrangements typically operate in an ad-hoc, under-the-radar fashion, a reality that is underscored by the fact that around 95% of criminal cases are settled before trial. This shields those involved from public scrutiny and has serious implications for people living in over-policed and informant-heavy communities. The predictable upshots are false accusations, erroneous raids and, ultimately, the wrongful conviction of innocent people.
Needless to say, this exacerbates longstanding racial and class animus.
And, at least as far as the “war on drugs” is concerned, it’s also pointless. As Natapoff writes. “When police use criminal snitches to bust a mid-level drug-dealer or shut down a drug house, new dealers and houses spring up to take their place. This means that even as the harms associated with informants persist, any benefits of their deployment may quickly dissipate.”
That said, Snitching does not advocate eliminating the police, ending drug prosecution or supporting prison abolition. Instead, the book outlines a series of reforms to make the practice less opaque.
“The key to regulating the informant market is to reject the culture of secrecy and impunity that generates so many of its harmful consequences and to insist on principled legal limits to the ways in which the state can deploy the informant deal,” she concludes. As a starting point, she supports requiring police to keep accurate records about informants, with a detailed chronicle of their activities and the tradeoffs involved. She also wants limits on which crimes can be forgiven and which violators can be approached. “Very minor crimes should not open the door to the risks of the informant deal,” she writes. “Legislators should prohibit police from pressuring traffic offenders into becoming drug informants.”
Furthermore, Natapoff wants law enforcement to stop looking the other way when snitches commit assault, battery or rape. She also wants them to be barred from threatening vulnerable populations — undocumented people, children, the mentally disabled and transgender individuals among them — with deportation or arrest if they fail to cooperate.
They’re good suggestions and while they do not go far enough to upend our racist, sexist, classist and homophobic system of injustice, they’re a start.
Natapoff, I suspect, would agree on the need for wider change. “Short of the military, our criminal system is the most coercive, violent arm of the democratic state,” she writes. “It possesses extraordinary powers, including the authority to search our homes, our bodies, and our email; to stop us on the street and in our cars; to lock us up; and even to shoot at us.”
We, however, also have power, and at the very least, can support efforts to end the flagrant human-rights violations that have been allowed to flourish in our communities.
Snitching: Criminal Informants and the Erosion of American Justice, Second Edition
Alexandra Natapoff; foreword by Barry Scheck
New York University Press; November 2022; 288 pages