Bait and Snitch

The law, lawyers, and the court.
Dec. 12 2005 5:41 PM

Bait and Snitch

The high cost of snitching for law enforcement.

From Baltimore to Boston to New York; in Pittsburgh, Denver, and Milwaukee, kids are sporting the ominous fashion statement, prompting local fear, outrage, and fierce arguments over crime. Several trials have been disrupted by the T-shirts; some witnesses refuse to testify. Boston's Mayor Thomas M. Menino has declared a ban: "We're going into every retail store that sells them," he declared to the Boston Globe, "and we're going to take them off the shelves." With cameo appearances in the growing controversy by NBA star Carmelo Anthony of the Denver Nuggets and the rapper Lil Kim, snitching is making urban culture headlines.

The "Stop Snitchin' " T-shirt drama looks, at first blush, like a dustup over a simple counterculture message launched by some urban criminal entrepreneurs: that friends don't snitch on friends. But it is, in fact, a symptom of a more insidious reality that has largely escaped public notice: For the last 20 years, state and federal governments have been creating criminal snitches and setting them loose in poor, high-crime communities. The backlash against snitches embodies a growing national recognition that snitching is dangerous public policy—producing bad information, endangering innocent people, letting dangerous criminals off the hook, compromising the integrity of police work, and inciting violence and distrust in socially vulnerable neighborhoods.

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The heart of the snitching problem lies in the secret deals that police and prosecutors make with criminals. In investigating drug offenses, police and prosecutors rely heavily—and sometimes exclusively—on criminals willing to trade information about other criminals in exchange for leniency. Many snitches avoid arrest altogether, thus continuing to use and deal drugs and commit other crimes in their neighborhoods, while providing information to the police. As drug dockets swell and police and prosecutors become increasingly dependent on snitches, high-crime communities are filling up with these active criminals who will turn in friends, family, and neighbors in order to "work off" their own crimes.

Critics of the T-shirts tend to dismiss the "stop snitching" sentiment as pro-criminal and antisocial; a subcultural expression of misplaced loyalty. But the T-shirts should be heeded as evidence of a failed public policy. Snitching is an entrenched law-enforcement practice that has become pervasive due to its crucial role in the war on drugs. This practice is favored not only by police and prosecutors, but by legislatures: Mandatory minimum sentences and restrictions on judges make snitching one of the only means for defendants to negotiate in the face of rigid and drastic sentences. But the policy has turned out to be a double-edged sword. Nearly every drug offense involves a snitch, and snitching is increasingly displacing more traditional police work, such as undercover operations and independent investigation.

According to some agents and prosecutors, snitching is also slowly crippling law enforcement: "[I]nformers are running today's drug investigations, not the agents," says veteran DEA agent Celerino Castillo. "Agents have become so dependent on informers that the agents are at their mercy." According to a study conducted by professor Ellen Yaroshefsky of Cardozo Law School, some prosecutors actually "fall in love with their rats." A prosecutor in the study describes the phenomenon: "You are not supposed to, of course. But you spend time with this guy, you get to know him and his family. You like him. [T]he reality is that the cooperator's information often becomes your mindset." In this view, criminal snitching is a sort of Frankenstein's monster that has turned on and begun to consume its law enforcement creator.

The government's traditional justification for creating criminal snitches—"we-need-to-flip-little-fishes-to-get-to-the-Big-Fish"—is at best an ideal and mostly the remnant of one. Today, the government lets all sorts of criminals, both big and little, trade information to escape punishment for nearly every kind of crime, and often the snitches are more dangerous than the targets. As reported by Wall Street Journal reporter Laurie Cohen last year: "The big fish gets off and the little fish gets eaten. ... [T]he procedure for deciding who gets [rewarded for cooperation] is often haphazard and tilted toward higher-ranking veteran criminals who can tell prosecutors what they want to know."

Snitching thus puts us right through the looking glass: Criminals direct police investigations while avoiding arrest and punishment. Nevertheless, snitching is ever more popular with law enforcement: It is easier to "flip" defendants and turn them into snitches than it is to fight over their cases. For a criminal system that has more cases than it can litigate, and more defendants than it can incarcerate, snitching has become a convenient case-management tool for an institution that has bitten off more than it can chew.

And while the government's snitching policy has gone mostly unchallenged, it is both damaging to the justice system and socially expensive. Snitches are famously unreliable: A 2004 study by the Northwestern University Law School's Center on Wrongful Convictions reveals that 46 percent of wrongful death penalty convictions are due to snitch misinformation—making snitches the leading cause of wrongful conviction in capital cases. Jailhouse snitches routinely concoct information; the system gives them every incentive to do so. Los Angeles snitch Leslie White infamously avoided punishment for his crimes for years by fabricating confessions and attributing them to his cellmates.

Snitches also undermine law-enforcement legitimacy—police who rely on and protect their informants are often perceived as favoring criminals. In a growing number of public fiascos, snitches actually invent crimes and criminals in order to provide the government with the information it demands. In Dallas, for example, in the so-called "fake drug scandal," paid informants set up innocent Mexican immigrants with fake drugs (gypsum), while police falsified drug field tests in order to inflate their drug-bust statistics.

Finally, as the T-shirt controversy illustrates, snitching exacerbates crime, violence, and distrust in some of the nation's most socially vulnerable communities. In the poorest neighborhoods, vast numbers of young people are in contact with the criminal-justice system. Nearly every family contains someone who is incarcerated, under supervision, or has a criminal record. In these communities, the law-enforcement policy of pressuring everyone to snitch can have the devastating effect of tearing families and social networks apart. Ironically, these are the communities most in need of positive role models, strong social institutions, and good police-community relations. Snitching undermines these important goals by setting criminals loose, creating distrust, and compromising police integrity.

The "Stop Snitchin' " T-shirts have drawn local fire for their perceived threat to law-abiding citizens who call the police. But in the outrage over that perceived threat, the larger message of the shirts has been missed: Government policies that favor criminal snitching harm the communities most in need of law-enforcement protection.

While snitching will never be abolished, the practice could be substantially improved, mostly by lifting the veil of secrecy that shields law-enforcement practices from public scrutiny. As things stand, police and prosecutors can cut a deal with a criminal; turn him into a snitch or cut him loose; forgive his crimes or resurrect them later; release him into the community; or decide to pick him up. They do all this at their discretion, without legal rules, in complete secrecy with no judicial or public accountability. As a result, we have no idea whether snitching even reduces crime or actually increases it, and we can only guess at the collateral harms it imposes on high-crime communities.

The government should reveal snitching's real costs, including data on how many snitches are released into high-crime neighborhoods and what sorts of snitch crimes are forgiven. The government should also be required to establish the concrete benefits of a policy that releases some criminals to catch others, by accounting for how much crime actually gets stopped or solved by snitch information. Only then can we rationally evaluate how much government-sponsored snitching makes sense. Until we can know the real value of snitching, the T-shirts remain an important reminder that this particular cure for crime may be as bad as the disease.

Alexandra Natapoff is professor of law at Loyola Law School, Los Angeles. She is the author of the law review article “Misdemeanors,” forthcoming in the Southern California Law Review.

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