Using confidential informants? Prepare to be scrutinized and regulated
“Too much of a bad thing” is resulting in calls for reform and legal restraints
This article was going to be a “how to” for using confidential informants (CIs). I discovered there’s plenty of information on that already.
Here’s the bottom line:
- There must be effective written procedures for vetting and handling CIs;
- The policies must be followed;
- Handlers must be properly trained, mentored and supervised;
- The above must be documented.
See the resource section at the end of the article for tools for all of the above.
Instead, this article is a cautionary tale of how, in spite of all the tools to ensure that the use of CIs passes legal and ethical muster, police practices are inciting calls for reform, restrictions and regulations.
A necessary evil
“[D]irty business,” is how the U.S. Supreme Court describes the use of CIs (Lee v. United States, 343 U.S. 757). Nonetheless, the Court has expressly sanctioned their use: “[T]he informer is a vital part of society’s defensive arsenal.”
Courts recognize CIs are necessary in fighting crime:
"Without informants, law enforcement authorities would be unable to penetrate and destroy organized crime syndicates, drug trafficking cartels, bank frauds, telephone solicitation scams, public corruption, terrorist gangs, money launderers, espionage rings, and the likes.” U.S. v. Bernal-Obeso (9th Cir.)
But courts also view CIs with caution and urge jurors to do the same.
Federal and state courts have pattern jury instructions that instruct jurors to view CI testimony with greater care than that of ordinary witnesses, giving particular consideration to whether their testimony was influenced by what the government gave them.
Similarly, it behooves the government – police and prosecutors – to handle CIs with greater ethical care than ordinary witnesses because, as we know, most would dime out their mothers for a quarter and come up giving change. Indeed, CIs have acknowledged as much. (U.S. v. Bernal-Obeso cites that, “According to one informant, … presently informants "will even book their own mother.")
These are for illustrative purposes – not a comment on the merits.
Twety-year-old Andrew Sadek began selling marijuana while attending college, meeting his customers in the parking lots at his school. On two sales that totaled $80, the buyer was another student working as a CI for a task force of various local law enforcement agencies.
Police informed Sadek he could be charged with a Class A felony for selling marijuana on a college campus. He was told he could face a sentence of over 40 years or work as a confidential informant; he choose the latter option, wearing a wire while making drug buys.
Sadek made three controlled buys of 1/8 ounce of marijuana each. He needed to make one more buy from the last of the three sellers and one from a new suspect to meet his obligations. Instead, he fell out of contact and his body was found about six months later, in June 2014, in a river with a gunshot wound to the head and wearing a backpack weighted with rocks. An autopsy didn’t conclude whether the wound was self-inflicted or not. The weapon was never found. His parents believe he was murdered as a result of his work as a confidential informant. A review found no police wrongdoing.
In 2017, Andrew’s Law was passed in North Dakota. It put in place new protections for criminal informants. Andrew’s parents have a trial date in their wrongful death lawsuit against the Deputy Sheriff who brokered the CI agreement with their son and handled him, and his employing county.
Andrew’s Law was based on Rachel’s Law in Florida – the nation’s first to help protect CIs. Rachel was a 23-year-old Florida State University graduate, who was murdered while acting as a police informant in a botched drug sting. She’d been given $13,000 in cash to buy ecstasy, cocaine and a gun in hopes of having her own drug charges dropped. The dealers discovered she was wired and killed her. The city of Tallahassee settled a wrongful death lawsuit brought by Rachel’s parents for $2.6 million. The officers who were part of the buy-bust were fired.
Rachel’s Law requires CIs be told their work doesn’t guarantee a reduction in any pending criminal charges, immunity or a reduced sentence. It ensures CIs are afforded the right to obtain private legal counsel before agreeing to go undercover. It mandates law enforcement agencies develop policies for the recruitment, control and use of CIs. The policies must include restrictions on off-duty association and require supervisory approval before a juvenile is recruited. A person's age, substance abuse history or drug court status must be considered. Access to CI records within an agency must be controlled, noting each person who views them, and policies must be periodically reviewed. It also resulted in stricter training for CI handlers. Rachel’s Law became a national model.
See also the case of Isiah Wall, a 19-year-old drug informant who ended up dead 11 days after he started working for police. Other cases of young drug offenders turned CIs are noted.
Isolated cases involving young, low-level drug offenders as CIs aren’t the only thing prompting scrutiny. A broader police use of CIs has prompted Congressional hearings and reports, as well as internal reviews and criticisms:
- 2007 House Hearing on Law Enforcement Confidential Informant Practices.
- 2017 House Hearing on Use of Confidential Informants at ATF and DEA.
- U.S. GAO 2015 report on DOJ and DHS use of CIs with recommendations for updates to policies and additional guidance.
- OIG 2005 report on FBI use of CIs and compliance with AG guidelines.
- On March 5, 2018, a U.S. Attorney gave a talk titled “The Use of Informants: A Cautionary Tale” about the infamous case of informants Bulger and Flemmi. “[F]ield memos, written between 1964 and 1987, made it clear to Washington that the informants had killed and were likely to kill again, describing one of them as ‘the most dangerous individual known’ in the Boston area.”
Not to be outdone, academia has launched proposals for The Confidential Informant Accountability Act. A version of such a bill affecting federal law enforcement agencies is currently working its way through Congress. Its sponsor said the bill stems from a September 2016 report by the Office of the Department of Justice Inspector General about the extent of CI use by the DEA and ATF – with little or no oversight.
Two additional recommendations
In his thoughtful paper, Confidential Informants: Ethical Considerations for the Practitioner, Dr. Robert E. Tarwacki, Sr. concludes with two recommendations.
First, he observes that, in addition to procedures for handling CIs, handlers should receive training in philosophy and ethics that require critical thinking. Each use of a CI is an exercise in situational ethics founded in an “ends justifies means” rationale that the criminal justice system sanctions. But critical judgments must be made as to what means are justified by what ends else officers find themselves corruptly pursuing a noble cause.
Second, in light of statistics provided by the Louisiana State Police revealing over 89 percent of informants examined by polygraphers confessed to having told significant lies to their handlers, he suggests pre-employment and periodic polygraph examinations of CIs.
Resources for using confidential informants
Police policy and procedures
- IACP LAW ENFORCEMENT POLICY CENTER, Confidential Informants Concepts and Issues Paper, updated August 2017, includes Sample Confidential Informant Agreement
- IACP Model Policy for the use of CIs
- DOJ Guidelines for use of CIs
- Confidential Informant Management and Control Procedures (Cincinnati, Ohio)
- Developing Confidential Informants, PATCPublic Agency Training Council (PATC)
- Undercover Operations and Informant Handling Tactics Training Manual, New York State Division of Criminal Justice Services, 2007
- “My C.I.” Cultivating and Effectively Handling today’s Top Confidential Informants, trainings offered in January and March 2019
- DEA Training Manual -- Confidential Informants
- Confidential Informants: A Closer Look at Police Policy looks at how many departments fall short of the IACP standards, the problem of CI integrity and proposes integrity testing, among other solutions.
- A Guide for Developing and Controlling Informants outlines the proper procedures for handling informants.
- Speaking Truth to Power: Confidential Informants and Police Investigations details the role of informants in the complex web of information exchange between narcotics, homicide and street-level vice operations in two major metropolitan police departments.