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May 22, 2007

Is it okay to rat out rats?

22pleaIn today's New York Times, Adam Liptak has this intriguing article about the website "Who's a Rat."  The website describes itself as "a database driven website designed to assist attorneys and criminal defendants with few resources [allowing]  individuals and attorneys to post, share and request any and all information that has been made public at some point [including information about an] Informant who makes his or her Informant status known to any person."  Here are snippets from the Times article about reactions from the Justice Department:

There are three "rats of the week" on the home page of whosarat.com, a Web site devoted to exposing the identities of witnesses cooperating with the government. The site posts their names and mug shots, along with court documents detailing what they have agreed to do in exchange for lenient sentences....

Federal prosecutors are furious, and the Justice Department has begun urging the federal courts to make fundamental changes in public access to electronic court files by removing all plea agreements from them — whether involving cooperating witnesses or not.  "We are witnessing the rise of a new cottage industry engaged in republishing court filings about cooperators on Web sites such as www.whosarat.com for the clear purpose of witness intimidation, retaliation and harassment," a Justice Department official wrote in a December letter to the Judicial Conference of the United States, the administrative and policy-making body of the federal court system.  "The posting of sensitive witness information," the letter continued, "poses a grave risk of harm to cooperating witnesses and defendants."...

Judge John R. Tunheim, a federal judge in Minneapolis and the chairman of a Judicial Conference committee studying the issue, acknowledged the gravity of the safety threat posed by the Web sites but said it would be better addressed through case-by-case actions.  "We are getting a pretty significant push from the Justice Department to take plea agreements off the electronic file entirely," Judge Tunheim said.  "But it is important to have our files accessible. I really do not want to see a situation in which plea agreements are routinely sealed or kept out of the electronic record."

May 22, 2007 at 07:00 AM | Permalink

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Snitches and rats are caustic to our criminal justice system, damages communities and destroys lives. "Who's a Rat" simply attempts to undo some of that damage. As the SSRN summary of a recent Alexandra Natapoff article notes:

Every year, tens of thousands of criminal suspects, many of them drug offenders concentrated in inner-city neighborhoods, informally negotiate away liability in exchange for promised cooperation, while law enforcement at the local, state and federal levels rely on ever greater numbers of criminal actors in making basic decisions about investigations and prosecutions. While this marriage of convenience is fraught with peril, it is nearly devoid of judicial or public scrutiny as to the propriety, fairness, or utility of the deals being struck. At the same time, it is a quintessential expression of some of the most contentious characteristics of the modern criminal system: law enforcement discretion, secrecy, and the increasing informality of the adjudication process.

The informant institution is also an under-appreciated social force in low-income, high-crime, urban communities in which a high percentage of residents - as many as fifty percent of African American males in some cities - are in contact with the criminal justice system and therefore potentially under pressure to snitch. By relying heavily on snitching, particularly in drug-related cases, law enforcement officials create large numbers of informants who remain at large in the community, engaging in criminal activities while under pressure to provide information about others. These snitches are a communal liability: they increase crime and threaten social organization, interpersonal relationships, and socio-legal norms in their home communities, even as they are tolerated or under-punished by law enforcement because they are useful.

Posted by: anon | May 22, 2007 9:12:31 AM

As I read Natapoff's work, she's not anti-informant per se.

Rather, the argument appears to be (as I discern from a recent Slate article) that there are 3 main costs (I may have missed something) to over-reliance on informants, and not just ordinary informants, but criminals who "snitch" to cut a deal:

http://www.slate.com/id/2132092/

1. The criminal justice system gets warped when the "snitches" are the ones doing most of the police work. This is driven in part because it's easier to rely on informants than to do real police work. As Prof. Natapoff says in a Slate article:
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.

2. Given the incentives, "snitches" can be unreliable and can increase the false conviction rate of the criminal justice system.

3. The deals police cut with "snitches" are often suboptimal, and the police end up damaging society by putting criminals back on the street in exchange for a bit of unreliable information.

Prof. Natapoff also argues that the pervasiveness of "snitches" "can have the devastating effect of tearing families and social networks apart." I think is probably the most controversial assertion, and I tend to disagree. Dishonest "snitches"---people who would falsely accuse friends and family of crimes are a bad thing. Honest snitches, though, contribute to the safety of the neighborhoods. A social network premised on covering up crime isn't a social network worth preserving.

If the "stop snitching" movement was focused on (1) preventing false accusations (2) made by people who have committed crimes of their own and want to cut a deal, then it could possibly have some claim to respect.

Instead, it lumps innocent bystanders with criminals, and false accusations with true ones, and amounts to criminals arguing that the police have no right to ask ordinary citizens for assistance. That's ridiculous.

Posted by: | May 22, 2007 9:46:14 AM

One wonders why federal judges should be trusted to handle, on a case by case basis, information related to "snitches", which, by the way is a corrosive term.

Posted by: federalist | May 22, 2007 9:52:39 AM

It's certainly a corrosive term. People who use it seem more interested in attaching a moral stigma to cooperating with the police than in addressing the legitimate social costs of overreliance on dishonest informants.

Posted by: | May 22, 2007 9:59:49 AM

If "snitch" is a corrosive term, it's also the term most often used by law enforcement to describe their own informants, so that makes it corrosion from within.

I wrote on Grits last year about this DoJ movement to conceal records about informants. It's a terrible overreaction that IMO makes all the problems Natapoff identifies with CI use much worse.

Posted by: Gritsforbreakfast | May 22, 2007 10:13:23 AM

However, it is well to remember that "informants" at times do have a legitimate role in the system. As part of his opinion in US v. Bernal Obesco, 989 F.3d 331 (9th Cir. 1993), Judge Trott (an authority on use of informants) discussed the pros and cons of informant testimony. Among his observations:

"It is also true, however, that our criminal justice system could not adequately function without information provided by informants and without their sworn testimony in certain cases. This need is created by our rules permitting persons accused of crime to confront the witnesses against them, measures that elevate the hearsay rule to Constitutional dimensions. Moreover, it is a well-known phenomena that the higher-ups in criminal enterprises attempt to insulate themselves from detection and exposure by having their unlawful schemes carried out by others. 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. In the words of Judge Learned Hand, “Courts have countenanced the use of informers from time immemorial; in cases of conspiracy, or in other cases when the crime consists of preparing for another crime, it is usually necessary to rely upon them or upon accomplices because the criminals will almost certainly proceed covertly.” United States v. Dennis, 183 F.2d 201, 224 (2d Cir.1950), aff'd, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951); On Lee v. United States, 343 U.S. at 756, 72 S.Ct. at 973 (“Certainly no one would foreclose the turning of state's evidence by denizens of the underworld.”). Innumerable important convictions have been appropriately attained using informants' testimony."

Posted by: ward | May 22, 2007 10:17:26 AM

Ward, what is the point of that quote in light of this discussion? Judge Trott seems to say making informant information public is necessary and important to justice, declaring "This need is created by our rules permitting persons accused of crime to confront the witnesses against them, measures that elevate the hearsay rule to Constitutional dimensions." So Trott's quote seems to come out on the side of the Whosarat folks, though you seem to imply (with the opening "however") that it's a contrarian view.

Posted by: Gritsforbreakfast | May 22, 2007 10:32:51 AM

My guess is that Ward's merely making the point that the anti-snitching discussions often lose sight of the benefits of CI.

Of course Natapoff argues that the discussions of CI often lose sight of the costs of CI.

Now that both things are on the table, no one posting on this thread needs to worry about losing sight of either.

Posted by: 9:46 anon | May 22, 2007 10:42:25 AM

Personally I think it misunderstands the issue to frame it in terms of whether informants are good or bad. The issue is whether information about their use by the criminal justice system should be transparent enough to identify and counter abuses, which surely everyone agrees occur (after all, snitches are typically crooks flipping on competitors or colleagues, so their motives are by definition impure).

I don't oppose informant use per se, but I do think today's CI practices are sometimes corrupt and abusive, that they're overused in many instances, and that sunlight is the best disinfectant.

Posted by: Gritsforbreakfast | May 22, 2007 11:19:32 AM

That sunlight can get people killed.

Posted by: federalist | May 22, 2007 11:28:41 AM

@ federalist: Does that concern justify defenestrating the Constitution? Not in my book. See Ben Franklin on giving up liberty for safety, etc.

Posted by: Gritsforbreakfast | May 22, 2007 11:57:51 AM

Federalist, There is no need for snitches. (This is the term employed by prosecutors, cops, defendants, and judges. They are people who have, indeed, “snitched” – for a lower prison term.) Prosecutors need not prosecute people based on the testimony on their confederates. They also need not offer plea deals to people in return for testimony.

In fact, a prosecutor is free to subpoena a person from jail in any trial. He might not be willing to testify, but, my guess, is that his testimony would be a lot more credible if it wasn’t procured in exchange for some benefit.

I realize your aversion to the First Amendment, and I understand the need for government to operate in secrecy. In fact, I have often argued that courts, while completely unnecessary, should be closed to public scrutiny. Moreover, I think it should be a crime to reveal the names of criminal defendants and witnesses, because there is some conceivable risk of harm in the sunshine. Alas, the First and sixth amendment requires openness, and good-faith efforts on the part of people like yourself have failed. Instead, the priorities for constitutional change involve 1) gay marriage; and 2) flag-burning. I urge you to write your Congressman and suggest that he propose a constitutional amendment closing courts and their dockets, as well as providing for the appointment, in secret, of all judges. After that, it should be made a crime to reveal the names of any judge because of the risks that you have identified. I hope you will support the fight against crime.

Posted by: | May 22, 2007 12:00:08 PM

The moonbats are out in force today. What's up, is Dailykos down today?

Posted by: federalist | May 22, 2007 12:32:11 PM

2 moonbats in 1 comment thread isn't really a "force"

Posted by: 9:46 anon | May 22, 2007 12:33:47 PM

federalist: Do you agree that the identity of a criminal defendant should be kept confidential until the defendant is convicted? Shouldn't innocent criminal defendants be protected from the dangers of sunlight? Indeed, can't we agree that innocent criminal defendants are morally superior to guilty informants?

In light of the fact that informants are guilty, why should they be given greater protection than innocent criminal defendants?

Posted by: Mike | May 22, 2007 12:49:37 PM

There is more than one kind of snitch and the term leaks from more desirable, to less desirable kinds of informants.

Informants who aren't under the jurisdiction of the criminal justice system may have questionable motives, but at least are getting plea bargains.

When it comes to the criminal justice system snitches there are jail house snitches, for whom the subpeona power might have some sway, and then there are co-conspirator snitches, for whom big plea breaks are the most troublesome.

The problem is co-conspirator snitches are necessary too, and subpeona power may be less than effective when their own fates are in peril.

Posted by: ohwilleke | May 22, 2007 1:14:38 PM

just a regular guy. why is there a need for government secrecy?

Posted by: | May 22, 2007 3:18:42 PM

I am a licensed PI with 30 years experience. Posting an informant's history is invaluable to defense investigator's. Informant's often lie and many simply earn a living being a professional informant. They have been known to plant evidence, use entrapment and employ many technique's to simply profit from a contact. A history of past case's often turns up prosecutor mis-conduct and or lie's by the informant in other case's. I have met many of these informants and some are drug dealers themselves knocking out competition etc.

Posted by: Chuck | May 22, 2007 3:39:20 PM

Citizen. The web site, whosarat.com, is the biggest snitch of all.

Posted by: William Smith | May 22, 2007 5:00:27 PM

Nice, federalist - name calling is a mature approach and an extremely useful form of argument. Congratulations on your important contribution to this discussion.

Posted by: Gritsforbreakfast | May 22, 2007 6:30:06 PM

Congrats on your hyperbole. I hardly think that keeping "snitch" info off of easily accessible databases (but still available for inspection) is a threat to the Constitution's windows. That you think so is moonbat stuff.

I thought the dKos reference was a clever dig. Guess I struck a nerve. Lighten up.

Posted by: federalist | May 22, 2007 6:48:19 PM

Yes, federalist, it's very clear you consider yourself quite clever - on that everyone agrees.

As for your idea that information should be public but somehow disallowed from being placed online ... well ... that part was less clever.

Posted by: Gritsforbreakfast | May 22, 2007 7:05:17 PM

from a policy standpoint, perhaps you are correct, but from a Constitutional standpoint? come on, even Reinhardt wouldn't make that argument

Posted by: federalist | May 22, 2007 7:14:03 PM

Just a Regular Guy, Even though I staunchly oppose any sort of restrictions on these websites, I figure you deserve a better answer to this question then the likes of federalist are willing to give.

Once a snitch testifies, he loses his ability to continue snitching. So, if the feds, for example, have a snitch deep in the mafia, once he is exposed as a snitch, he can no longer provide information on ongoing crimes. So, by some accounts, this is an “interest.” Of course, the flip-side of this is that the CI might continue injuring innocent people, but if you assume that the government can manage its snitches (which it can’t), then there is no harm done.

Since Federalist doesn’t cite his authority for anything, he needs to be chuckled at. Strangely, he blames courts for ignoring his own arguments, but all he does is declare himself to be right without citation to higher authority.

Posted by: S.cotus | May 22, 2007 9:40:10 PM

Ah, once again, Gratiano, er S.cotus, writes. A citation to authority for certain propositions is simply unnecessary in a place like this. Assuming arguendo that there is a constitutional right for the public to have access to all court records on CIs, there is simply no authority for the idea that the access must be the ability to retrieve such records electronically. I guess it's possible to make a separation of powers argument that Congress cannot dictate to the courts such matters, but Congress could simply say, ok, courts, no computers for you.

It's an interesting world you live in S.cotus--where the wisdom comes down from on high--i.e., judges. It must be nice to share the same worldview as Nancy Pelosi. Personally, I don't know how someone who professes to be so erudite in "how [lawyers] roll" could have such a view. Anyone who has spent any amount of time actually reading opinions sent down from on high cannot help but come away underwhelmed. Ever wonder why a clear, well-written opinion is so valued? It's because of the dreck that we usually have to hack through.

Posted by: federalist | May 23, 2007 1:07:17 AM

Federalist, Nobody more than me constantly points out that judges simply politically-popular lawyers. (Which, by the way, is why I choose to remain anonymous.) Perhaps, like you, I am not overly impressed with most opinions. Though I suspect your definition of “well-written” has little to do with substance, and more to do with humor. But, that doesn’t change their validity, and role in legal argument.

But, what you don’t get, is that we structure our arguments within the framework various sources of law (usually precedent) in order to structure our clients’ interest. Sure, it is cute to stand up on declare that the “true” meaning of the constitution is found in some other source (like the “text” (whatever that means) or the type of person Jefferson was), but for the most part, we argue in terms of precedent. In fact, most of us are pretty well versed in other modes of interpretation, but, at best, they are used as backups.

Now, in order to make arguments coherently involving precedent we (lawyers, that is) cite. The fact that we do this often, and well, and put our clients’ interests into their framework means that unlike all the screaming bloggers that constantly call judges “activist” we come away with “wins” for our clients.

Perhaps, if you folks that want to kill more people (as part of some state-sponsored ritual) or incarcerate more minorities (it probably won’t be white people going to jail) spent less time whining about activist judges, and more time structuring your arguments in terms of precedent, your whiny blogs might have a bit more substance.

Posted by: S.cotus | May 23, 2007 6:47:08 AM

S.cotus, once again, you get far afield. I don't think it's necessary to cite case law for the proposition that the government need not have CI info in electronic records. If the government took such an action, it would be presumed to be constitutional and the burden would be on others to prove that it was not.

Posted by: federalist | May 23, 2007 10:06:04 AM

S.cotus, once again, you get far afield. I don't think it's necessary to cite case law for the proposition that the government need not have CI info in electronic records. If the government took such an action, it would be presumed to be constitutional and the burden would be on others to prove that it was not.

Posted by: federalist | May 23, 2007 10:06:12 AM

Federalist, You got some caselaw on that? This is the way we roll. You gotta provide the cites. Most of us live and breath this stuff, be sure and read the cases before you cite them, because otherwise we will just mock you for getting something off a blog.

And some of us might be impishly leading you astray into areas we know are quite well settled, but are not well known to non-lawyers. So, good luck.

Posted by: S.cotus | May 23, 2007 11:06:11 AM

federalist - Liptak's article says the feds want to "seal" witness cooperation agreements, so this is about more than just whether public documents should go on the web. That definitely brings into play the constitutional implications for confronting witnesses, etc., which S.Cotus references.

Posted by: Gritsforbreakfast | May 23, 2007 11:20:29 AM

I think it's pretty clear that the discussion turned from total seals to just keeping agreements out of the electronic records. I agree that defendants have a right to this info, see Brady v. Maryland; I am not so sure that there is a generalized constitutional right for the public to have access to all court records. There are arguments based on the "public" nature of trials.

Posted by: federalist | May 23, 2007 11:49:41 AM

There is a 6th amendment issue (which is the Brady issue), and a 1st amendment issue. There doesn't seem to be too much debate over Brady issues, but they are generally difficult to enforce.

There is a bit of a dispute between the circuits as to whether this access is grounded in the common law alone, or as part of the 1st amendment. But, the last big Supreme Court case on this issue is Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (“It is clear that the courts of this country recognize a general right to inspect and copy public records and documents... including judicial records and documents.”)

The first issue here is whether a plea agreement is a “judicial record.” This is a bit of a term of art, because not all filed papers are “judicial records.” Instead, they must be things that are necessary to the judicial function. I think plea agreements are, since judges must approve them. Therefore, one generally can’t seal a plea agreement. (Probably some specific information, other than the defendant’s name could be sealed, but that is another issue.) Finally, the E-government Act (i.e. Pub. L. No. 107-347 Sec. 205) directs courts to put their dockets (and documents filed electronically) online. There is a privacy/security/exception, but this is no bigger than any other sealing exception.

Posted by: S.cotus | May 23, 2007 1:12:00 PM

S.cotus, don't Brady and its progeny require turning over of plea deal agreements to the defense?

By the way, "public" is not a synonym for "all documents generated by the government".

Posted by: federalist | May 23, 2007 1:42:38 PM

I don’t think Brady provides a categorical right of access to the government’s plea agreements. Only ones that might help the defendant’s case.

Secondly, and blogs won’t teach you this, nobody is arguing in terms of the Sixth Amendment, but rather the First amendment, but rather the First. Nobody is claiming that all “government documents” are subject to an absolute First Amendment right of public access. Instead, people are making an argument that “judicial documents” (which is a term of art) are subject to a 1st amendment right of access (which is further enforced by a Federal Statute).

So, it isn’t just criminal defendants that get to look at plea agreements. Potential employers (or bar examiners) would get to look at them to, as many people might not want to hire someone that had felony reduced to a misdemeanor for snitching on their friends. Some people might not want to hire people with too much involvement with our system of justice (though this might be actionable on a civil level).

Posted by: S.cotus | May 23, 2007 1:52:14 PM

S.cotus - I've examined such records (and they ARE public records, not just government records) both on behalf of attorneys and as an opposition researcher vetting political candidates, including elected judges. The issue should not be portrayed as only affecting defendants or Brady or even Bar Association background checks. There are MANY reasons that make it important this information remains accessible - this is as much a public policy question as a legal question.

And federalist, maybe YOU are only talking about whether to put records online, but the NYT says the DOJ wants to eliminate the records from the public sphere entirely. They're getting pushback, but that's the administration's goal according to Liptak.

Posted by: Gritsforbreakfast | May 23, 2007 2:11:18 PM

Grits, I don’t know much about public policy. But, I keep saying that the First Amendment does preserve the right to do just what you describe for the very reasons that you were doing it. This is why I don’t think the 6th amendment is the best way to analyze the issue.

Posted by: S.cotus | May 24, 2007 8:50:05 AM

S.cotus, as an example of more public policy implications, see this discussion on a related topic I wrote today. I'd be interested in your, federalist's, and other commenters' opinion on the issues raised there by a discussion among Texas DAs about CI use.

You've hit upon a very important distinction, IMO, S.cotus: In law, one worries over the best argument - e.g., first amendment or sixth, in this case. In the political arena, which is where these decisions are being made (there's no court case driving the changes), one makes ALL the arguments because different ideas will convince different people.

That's one of the main differences between lawyering and politicking, actually, and why many very good practicing lawyers aren't very good at writing bills or lobbying. The mindset behind how you approach argumentation really does differ a LOT in the two arenas.

Thanks to all for the good discussion.

Posted by: Gritsforbreakfast | May 24, 2007 7:32:39 PM

Grits:

Cops cutting deals with criminals can be as benign as "Colors", where people "owed Hodges one" or as bad as the shenanigans in the FBI's investigation of Whitey Bulger and his crew.

I agree with you that with crimes with victims having the cops simply let it go is very problematic. Very problematic.

Posted by: SPO | May 24, 2007 9:04:24 PM

I don't see how DAs are bound by cops cutting deals. But, as a practical matter, what happens if cops refuse to help the DA?

Posted by: federalist | May 24, 2007 9:59:59 PM

Grits, In law we could make either the 1st or 6th amendment argument.

But, the 6th amendment argument is very narrow, because it only helps certain defendants, and Brady compliance is difficult to verify. Yet, prosecutors may still comply with it.

The 1st amendment applies to everyone, so people (you know, those that elect the legislature) can get a taste of what prosecutors are doing. Unlike the 6th, the participation of the court or Brady-compliance of a prosecutor is not required. (Though I do have some concerns that relying on the 1st amendment might not be as accurate, and I am not quite sure whether it is really that good an idea to leave this sacred task to for-pay services.)

Federalist, SPO might not really be talking about actual, binding, plea-bargains, or even agreements (in writing) between prosecutors and counsel for criminal defendants. (Which wouldn’t necessarily show up on these for-pay sites, but would be useful for impeachment purposes.)

Posted by: S.cotus | May 25, 2007 8:35:15 AM

What amazes me about a gov snitch is a jury will sometimes believe them. Why doesn't a jury question the government concerning witnesses and what they were charged with. Comparing the sentencing of a snitch to one who refuses to be a snitch is totally disgusting. Ajury has more power in their position and need to exercise that right during court proceedings. Just because you turn gov witness does not mean you are truthful. Moreover, a rat will be told they are facing a lifetime in prison if they don't cooperate. The government puts the fear to them leaving them with no other choice but to lie and do as they are told. I have seen it too many times...Have mercy on the one who chooses not to be one!!!

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Posted by: DFDF | Jul 29, 2007 1:21:29 AM

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