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The Appeal Podcast Episode 7: What Abolitionists Mean When They Talk About Abolition

With William C. Anderson, journalist and co-author of As Black As Resistance.

Scott Olson/Getty Images

The Appeal Podcast Episode 7: What Abolitionists Mean When They Talk About Abolition

With William C. Anderson, journalist and co-author of As Black As Resistance.


We didn’t always have police and prisons as we know them today—in fact, they’re fairly recent inventions. Abolitionists like William C. Anderson ask us to radically rethink the necessity of police, and our practice of throwing people in cages. Anderson traces the origins of modern punishment from slavery to debt peonage to Jim Crow to the co-called War on Drugs.

The Appeal is available on iTunesSoundcloud and LibSyn RSS. You can also check us out on Twitter.

Transcript:

Adam Johnson: Hi, welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Thanks for joining us. You can follow us on Twitter @TheAppealPod and on Facebook at The Appeal Podcast and make sure to subscribe on iTunes if you can. So one of the most difficult things for abolitionist and prison reform advocates is to rewire the human brain to envision a world without police or prisons or at the very least, these institutions massively reimagined in reduced. Our guest today, William C. Anderson, journalist and co-author of As Black As Resistance, grapples with these questions in a unique and probing way. He joins us today to explain how we can’t really talk about police or police reform without discussing the corollary problems of austerity and runaway capitalism.

[Begin Clip]

William C. Anderson: If you were putting the resources and investing into the communities in the first place, the problems that you’re supposedly solving with the police, which are not actually being solved with the police, would be lessened. You know, it wouldn’t be as much of an issue. Put the resources into the community, like give people what they need, stop, you know, allowing corporations to amass these astronomical amounts of wealth.

[End Clip]

Adam: William, thank you so much for coming on.

William C. Anderson: Hey, thanks for having me.

Adam: You wrote a piece for The Appeal called “Responses to Violence Must Move Beyond Policing.” I find this topic super interesting because I think it gets to the axiomatic core of what we talk about when we talk about abolition or when we talk about reform. I want to talk first about how you think the average person, and let’s be clear here, I think the average kind of proverbial middle class white person views the police in society versus what their actual function is, and uh, there’s a common joke on Twitter that white people view 911 like customer service. Obviously that’s radically different than how police function for a lot of communities in this country. Can we talk about that gap between how your kind of average, quote unquote “average” sort of white person who the police department effectively is kind of built a serve views police versus how they actually function in society?

William C. Anderson: Well, that’s really interesting that you asked that because there’s actually a quote by Frank Wilderson, um, where he talks about white people being deputized and being basically manifestations of the police in I guess civilian life even though they’re not necessarily actually police as their form of employment, it’s more so that whiteness or white supremacy and being in a white supremacist society often gives white people an authority to dictate to people like what they can and cannot do and to oppress the existence of other people who are not white around them. This has a special relationship to black people, particularly, in the sense that being in this state of perpetual anti-blackness around us and experiencing anti-blackness constantly we are treated as if we’re supposed to be subservient and we’re supposed to just follow the orders of, of white folks. So you see this play out a lot of times, you know, you’re seeing all these calls being made to the police-

Adam: Right.

William C. Anderson: Over these really trivial things like, you know, the little girl selling water or you know, a black person just minding their own business barbecuing. We see these events happening in the news and there’s kind of this reaction, uh, to it now where people are acting like this is a new thing and we see this oftentimes. Folks react to things that have been happening for a very, very, very long time as if they’re new. When Black Lives Matter was first, you know, making headlines, folks were like, ‘Oh, you know, this person from the past, this black leader was a lot like BLM or, you know, duh, duh, duh.’ They were like trying to make BLM into something that was like so exceptional when the core points of that movement were exactly the same as many, many movements that had come before. And instead of drawing the connection between the past and to BLM, it was more like they were trying to make BLM something that maybe was more significant than the past. And it’s like, so people do this a lot of times and they’re doing it with, um, the police being, uh, used by white folks as this force to harm black people. But that is the origin of the police. And it’s not just black folks; it is a lot of folks.

Adam: Right. The only difference is the ubiquity of smart phones with cameras, right? That’s the sort of thing that changed.

William C. Anderson: Right, right. That’s had a huge influence, that’s had a huge influence. And so we’re seeing things now in this very, uh, unfortunately regular way and we’re digesting it constantly because it’s, it’s being shown to us and folks are seeing it a lot more closely and they may not have the opportunity to be able to ignore it in the same way. So, you know, white people have a different relationship with the police for sure than I do. And I know that there’s even black folks who feel that, uh, the police serve a special purpose that we shouldn’t mess with or disturb. And there’s white folks who feel that way too. But it all boils down to the origins of what the police are for. And that is to do what they’re doing. That is to harm people, that is to carry out the agenda of the state, you know, and, and oppress people. That’s, that’s what they’ve always done.

Adam: To your sort of people who listen to this who are maybe are kind of, uh, your, your proverbial well intentioned liberal who thinks police needs reform but not necessarily abolition or any kind of meaningful restructuring or rethinking, to what extent do the origins of police are they by definition going to be racist and oppressive and do you feel like efforts to kind of make a kinder, gentler machine gun hand, to paraphrase Neil Young, are they, are they even worth it or do you think it sort of just rotten to it’s core? And the follow up question to that, which I think this straw man I’ve created will also ask is what do you replace it with? Um, you know, who, who am I supposed to call when I’m under siege, if I can’t call a, you know, Jack Bauer or Detective McClane or the kind of image of a cop we have in our head.

William C. Anderson: Uh huh. Um, I mean the origins of the police with the constables that were used against native people with fugitive slave laws, xenophobic policies with Jim Crow, with the black codes, those are all prime examples of the origins of the police and what they have been used for and what they were meant for and what they are still utilized to do in this country. I think that, uh, if we’re being honest, the police are, yes; they are rotten to their core. Um, unfortunately people are really used to the idea of having the police. So a lot of times people who are even very, very oppressed and harmed by policing and who have communities that suffer under policing feel that the police are absolutely necessary and that’s something real that we have to deal with because people don’t necessarily, um, have an alternative in mind. So I think that we have to work on, I’ve been, I’ve been describing it as de-legitimizing the police. I wrote a piece for Rewire.News where I talked about delegitimizing the police and essentially what I’m saying when I say “delegitimize the police” is that we have to work on making the police something that doesn’t have the amount of legitimacy that it has in people’s imaginations. So working to actually take away this idea that people have in their minds that they need the police and showing people that we don’t actually need the police because we know that the police are not out here simply being heroic and solving crime and fixing the world and making the world a better place. We know that the police are out here framing people. We know the police are out here murdering people. We know that the police are not solving crime, that uh, you know, we can think about clearance rates and see that, you know, the police are not even actually failing to serve the communities that, you know, are, are actually, um, affected the most by crime. Right? And so, you know, it’s, it’s, it’s pretty apparent that the police are not living up to what they’re supposed to actually be doing in many instances. So we have to kind of use these examples to show people the police are not really doing what you imagine that they’re doing, um, a large majority of the time. And we can take it from there to kind of inform people if they’re not already aware, ‘Hey, this is, uh, this is, uh, something that we need to kind of get out of our heads that the police are necessary.’ And that’s a process. This is all a process. I think when, you know, when people think about abolitionists as you know, being kind of ridiculous, that they think that we are saying, ‘Hey, you know, snap, snap, let’s make the police all go away in one fell swoop.’ But there’s a process that has to happen here of abolishing policing in this country. It’s not just about like simply saying, you know, this sweeping thing is going to happen in an instant. It’s a process of showing people that the police aren’t necessary and making sure that communities have the resources they need so that the problems that police are supposed to be solving aren’t actually even, you know, as prevalent anymore. Because if the communities that the police are supposed to be serving the most, that have the most crime or that have the most disturbances and issues, if those communities had the resources that they needed in the first place, then we would be seeing a completely different society. But unfortunately we live in a society where, you know, we have, um, corporations like Amazon that have enough money to end poverty in the United States, if not the entire world. Um, they’re making so much in profits and that money, where is it going? It’s going into some CEO like, like Jeff Bezos, like its going into his pockets, its going into the pockets of people who are very elite and who, um, who squander all this money and who, who just constantly accumulate. It is not going back into the communities and the people and the workers who are serving these corporations and who make this society function with their labor. So if we started changing this conversation into what it really needs to be, which is that capitalism is a problem, white supremacy is a problem, you know, and I’ll be even more specific that racial capitalism is a problem, that if that were the case, then you know, we could convince more people to give up this idea of the police and delegitimize them, delegitimize the police in their minds and their hearts.

Adam: Right? So some super big ideas there I want to drill down a little bit and just as a point of reference Jeff Bezos is presently worth $142 billion, uh, which is greater than twenty three African countries’ GDPs combined. And this goes into the next thing you write about, which is you really can’t address the issue of police or even police reform or police abolition without addressing what you call racial capitalism, which is the kind of, um, essentially racist nature of capitalism as we see it. Now that may be a bit unsettling or kind of highly contentious for some of our, more, for lack of a better word, neo-liberal or pro-capitalists listeners. Um, can we talk about how one cannot divorce our system of capitalism from the sort of racist enterprises as we see it, namely the police?

William C. Anderson: Yeah, I mean the, um, the way that we think about capitalism today absolutely has to have an understanding of race and racism and white supremacy of, of anti-blackness. It has to have these, these major factors and the accumulation that the United States needed to get to the point that it’s at today. I mean the enslaved Africans, their labor, was the driving force that created the empire that we know today is the United States. That’s free labor. The reason that the United States was able to build capital and build power with such speed was because of just how genocidal the settler process was here and because of the extreme nature of, of transatlantic slavery and how brutal it was with regard to extracting labor, it’s absolutely necessary. You can’t think about how the United States got to this point without recognizing that. Especially when you think about the labor of black women to reproduce the labor force, uh, the free labor force as we know it today. So it’s absolutely crucial to recognize that fact. And you know, I mean, it’s pretty simple. You just have to recognize that, you know, this, this country’s not that old and in order for it to get to where it’s at now so quickly, you know, slavery was absolutely, you know, a driving force.

Adam: You really can’t overstate the importance of free labor in building economies. Like, you know, I visited the Jefferson Library and there were some people I was with who were like, wow, he, you know, he read so many books and I’m like, well, he didn’t work.

William C. Anderson: Right.

Adam: I mean, now I don’t want to be glib about it, but like, you know, it’s easy to read a lot of books when you literally don’t work. Uh, when you just sit around and manage your, you know, your, your scores and hundreds of slaves. Um, you know, so much of this country is built on, on either exceedingly cheap immigrant labor or, or free or free labor of, of slaves. And of course that is the sort of backbone and what you argue is that the police are inextricably linked to that history in terms of effectively managing the white supremacist, capitalist frameworks because that’s their kind of primary function. So I want to talk about the corollary necessity of austerity. You write a lot about austerity rhetoric.

William C. Anderson: Mhmm.

Adam: Okay. So, so in your piece you talk about how austerity rhetoric is very favorable to policing and austerity, the austerity fetish that is in our country, it is increasingly in Europe, goes hand in hand with, with, with what Professor Stephanie Kollmann at Northwestern University Pritzker School of Law calls the quote “scarcity logic.” Um, and she says it’s always been used to “simultaneously starve police misconduct investigations and invest in suppression squads and surveillance activities.” What does she mean by this? When we talk about how austerity and police go hand in hand, what are we talking about?

William C. Anderson: It’s basically a recognition of how the communities that are most in need are starved. They’re intentionally starved and at the same time told that there are not enough resources for them. There is not enough to give to them to meet their needs that they very well deserve. It’s this use of um, the police in this really, really terrible way that it’s like a big circle, you know, it’s like you have on one hand the austerity saying we don’t have enough like we already have to take from the resources that communities need. Maybe some people might, you know, describe that as taking away from people’s human rights at the same token saying that there’s not enough money, reinvesting, constantly reinvesting into police. And so there’s like this circle that happens where at the time that you’re starving communities and you’re intentionally strickening resources from communities and saying that there’s not enough, you’re reinvesting into the police. So again, it goes back to what I was saying earlier about communities not having enough resources and not having their needs met and, and creating more problems, uh, through not allowing the resources that communities need to get to them. And then saying that there is money for the police and that we have to put more into the police at the same time. So it’s like, it’s a very purposeful connection that’s happening there because again, if you were putting the resources and investing into the communities in the first place, the problems that you’re supposedly solving with the police, which are not actually being solved with the police, would be lessened. You know, it wouldn’t be as much of an issue, put the resources into the community, like give people what they need, stop, you know, allowing corporations to amass these astronomical amounts of wealth and have an actual system where people, you know, have to pay taxes, like just do normal stuff. Like corporations are not even paying taxes in this country.

Adam: Yeah.

William C. Anderson: And it’s like, then they say like, “Oh, we don’t have enough money for communities that have a high crime rates.’ What? Yes, you do, you have enough money. Like at the very least, we could be demanding that corporations pay taxes.

Adam: Yeah. We saw this in Chicago, starkly of course with the, uh, with the police academy. They, the cop academy as it’s known.

William C. Anderson: Right.

Adam: $95 million dollar new police training facility while Rahm Emanuel has shut down over fifty schools. And that really just drives home the priorities here, which is, which is not about providing even the most basic services. It’s about managing and containing and ghettoizing.

William C. Anderson: Right. And so that, that’s absolutely it. That’s part of the reason that racism and white supremacy become necessary to maintain all of this because in the minds of so many people in the society, they look at these communities, particularly black communities, and they say, ‘Well, they’re lazy, they’re stupid, they’re animals. Um, they’re, they’re predetermined to behave this way and, and to be criminals. And they lean towards criminality.’ Those sorts of, um, racist beliefs are exactly what reinforce the idea of policing. Because when you think that because someone is black, that they’re predetermined or they’re predestined to be a criminal or that they’re not someone who is capable of being good even, or being safe, then you don’t even think that if these people have resources and have the things that they need that they’ll still be able to do anything with them. Because you, when you think I’m an animal because I’m black, it doesn’t matter if I have the resources are not in your mind because you don’t even think that I’m a human. So it works hand in hand. It works absolutely hand in hand. So it’s not for me, it’s not about us appealing to white sensibilities or, or, or saying, you know, hey, or trying to convince white people or white society that we should have these things that we need as much as us pushing for our liberation and getting those things. Um, I’m not so much concerned with like, you know, trying to convince anyone of anything at this point. I just, I think that uh, black people and other folks who are oppressed in this society, I think that we have the capability to demand and, and, and take our liberation for ourselves through organizing.

Adam: So let’s talk about what those efforts have been. I know there, there are efforts in certain communities to have supplements or alternatives to the police, um, conflict resolution. So in the event that there’s, you know, let’s say domestic abuse or, or, um, someone stole something from someone that there are, instead of just mindlessly calling the police and having them show up and maybe shoot someone or put someone in a cage for five years, can we talk a little bit about what efforts are being done by these communities to come up with alternatives to police? Because I think that’s the first question people would ask, right? Which is all, ‘Well, what do you, what am I going to replace?’ People will do bad things, but um, we know what is out there that can sort of serve that social function?

William C. Anderson: Yeah, I mean there’s, you know, people talk about transformative and restorative justice and, and uh, and not calling the police. Trying to resolve issues in our communities on our own. And that is, um, that’s a very complicated conversation because, you know, I have to recognize that a lot of times I see men utilize the language of restorative and transformative justice at the expense of women who suffer things like domestic abuse, rape and, uh, all sorts of harassment at the hands of men in our communities and so it’s complicated because we don’t want to be pushing for something that is going to be transformative at the expense of the most oppressed folks in our communities, whether it’s queer folks, trans folks, women, whoever it might be. We have to, again, like I said, we have to do the work of delegitimizing the police hand in hand with, with, with the sorts of work, with this sort of work and this sort of effort like transformative and restorative justice because again, like that’s going to be us actually taking the, the idea of the police away and pushing for the resources that we need in our communities because that’s going to be part of that transformation. It’s not just, it’s not all just on us. It’s not just like, hey, and when I say it’s not all on us, I mean like it’s not completely a matter of us just changing our mind. It’s a matter of us also making sure that our communities are getting the resources we need so we see the environment change. So as much as, you know, we can make these, these efforts too, there also has to be a push to address the egregious violations of, of racial capitalism in the society that are constantly making sure that these problems persist in our communities. At the same time, you know, if, if people want to take these, these steps in their lives to show that the police aren’t necessary and like avoid interacting with the police in their daily lives that’s wonderful too. And so it’s, it’s a combination of different things that are needed, but addressing this system that we live under is such a huge part of this. And I don’t think that we can understate that.

Adam: Yeah, I guess I think that for some in the reform movement, it’s, it’s hard. You know, you always want to balance sort of fixing the things that can be fixed now with the broader critiques of the system. Um, you know, it’s the old cliché that you can envision the end of the world before you can envision the end of capitalism. Right? And, and it’s, and I feel like some, some, you know, there, there are always going to be people who sort of say, ‘well we need to work with what we have’ and um, and then we have this kind of goofy scenario where the Chicago police department partners with the Anti Defamation League to do racial sensitivity training, which is of course a kind of pro Israel lobby who trains Israeli soldiers in the occupied West Bank. Um, and the question is like there’s always this cutoff of like what reform is worth it and what reform is kind of just a red herring. And it’s, I and I don’t know, I don’t quite know the answer to that. I guess I’m curious what your thoughts are on that.

William C. Anderson: I mean, I think that we have to push against the idea that reform is even something that we should be viewing as a goal. I think that reform has a lot of the logics of liberalism kind of built into it. And I think that we just need to be telling people abolition is necessary. I mean folks like myself and others who are considered “radical” quote unquote by, uh, by some folks, by others. It’s, it’s unfortunate that like, these, these views like, you know, everybody should have healthcare or that education should be free or that we should live in a society free from police are considered radical because they’re actually normal, um, uh, views and they’re actually not that controversial in many places. So it’s really a testament to how, how backwards things are in the USA.

Adam: I think some people would view budget priorities to be radical in the moral sense, right, so even on a, on a national scale, forget Rahm’s $100 million police academy and cutting schools. You have, you know, we, we passed a defense budget for $719 billion dollars.

William C. Anderson: Right.

Adam: The increase alone over two years ago was $82 billion even adjusting for inflation. So that’s an increase, the budget increase alone of $82 billion could have paid for public school for every public college kid in the country, which is a total of $70 billion and we have $12 billion leftover to pay off everyone’s ATM surcharges.

William C. Anderson: Right.

Adam: Um, so, you know, that seems radical, you know, to me and I, and it’s hard to kind of, but it’s just the default setting and people view the default thing is the thing that’s sort of just a law of nature and it’s hard to kind of push back against that.

William C. Anderson: Yeah. It’s people, a lot of people are so invested in capitalism, uh, because they, they feel like they might be the CEO one day or they might be wealthy one day and they feel that because there’s this idea that maybe it’ll be me that gets to hoard capital or there’s also this idea that because I can go buy nice things, that this is a good system and I’m free.

Adam: Right.

William C. Anderson: People conflate the idea of freedom with consumption and they think that their ability to purchase goods, um, and to, you know, get a Mercedes or, or, um, get a flat screen TV or, you know, go buy nice food and have a really fancy dinner one night. They equate those things with freedom and because there’s this ignorance this pervasive ignorance in the USA about what the rest of the world is like. People think that a lot of other folks are, you know, living in these terrible conditions everywhere else where they don’t have the freedom to consume the way that we do. And so it’s definitely something in people’s minds where they defend this, this capitalist system in their heads under this imaginary freedom to consume and making that into something that is indicative of how great the society is rather.

Adam: Yeah. All right, well that’s, um, that was great. These are all super big questions that I think it’s always important to talk about them otherwise we get into the weeds of like, you know, talking about body cams or any, you know, so um, and I think, I think these kind of big questions of abolition or are they kind of have long been the driving force behind even what we, you know, even to the extent we even get like good reforms. I think the abolitions wing is always essential to keep the heat on otherwise we get complacent and self satisfied, so I really appreciate you providing that perspective. Thank you so much.

William C. Anderson: For sure.

 

Adam: I understand that you just wrote a book with Zoe Samudzi, and it covers many of these topics and, and much, much more. You want to talk about that before you go?

William C. Anderson: Yeah. So, um, the book that Zoe and I just wrote is called As Black As Resistance. Um, it just came out very recently and you know, some people are describing it as like a manifesto, but it’s an expansion of an article that we wrote for ROAR Magazine called “The Anarchism of Blackness.” And we’re basically talking about how, um, this, uh, state and uh, it’s oppressive anti-black logics, how it places blackness and situates blackness in a realm of anarchy. And we mean that in a few different ways. We really are, are talking about the extra state location that, that blackness has, how our citizenship is, um, is not considered valid because we’re black and how we are kind of primed for radical politics, should we choose to embrace it. And that could, that could very much look like anarchism. So it is, it’s a book that explores that in different ways. We talk about it with regard to self-defense, with regard to land and with regard to our movements and the future of our people going forward. And we’re also encouraging other people to, to think about how we talk about the anarchism of blackness in relation to black people and the USA and to think about it with regard to other groups who experienced similar conditions in the society. So it’s an easy book to read for the most part. Its doing pretty well. A lot of people are, are really appreciative of the text and we’re very grateful for that. And um, it’s, it’s published by AK Press and so you know, you can pick it up and hopefully join the conversation that we’re trying to have and join into some organizing too hopefully around the, the ideas that we’re putting out there, which we definitely want people to organize around.

Adam: Great. William Anderson, the book is called As Black As Resistance. Please check it out. Thanks so much for coming on.

William C. Anderson: Thanks for having me.

Adam: Thanks to our guest, William C. Anderson, journalist and author of As Black As Resistance. This has been The Appeal Podcast. I’m your host Adam Johnson. The show is produced by Florence Barrau-Adams and executive producer Sarah Leonard. Thanks so much for joining us. We’ll see you next week.

The Shadowy World of Jailhouse Informants: Explained

Illustration by Hisashi Okawa

The Shadowy World of Jailhouse Informants: Explained


In our Explainer series, Justice Collaborative lawyers and other legal experts help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines—like bail, civil asset forfeiture, or the Brady doctrine—so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers quarterly to keep them current.

In 2006, Ann Colomb and her three sons were convicted of running one of the largest crack cocaine distribution rings in Louisiana. Federal prosecutors said that, over the course of a decade, the family bought $15 million worth of drugs with a street value of more than $70 million. Over 30 witnesses were prepared to testify that they had sold crack to the Colombs. After the jury convicted them, Colomb and her sons sat in prison facing sentences that ranged from 10 years to life.

But none of it was true. The 30 witnesses were jailhouse informants who fabricated evidence against the Colombs in the hope of reducing their own sentences. A for-profit snitching ring was operating inside the prison system, where wannabe informants could pay thousands of dollars for information about defendants. The scam came to light accidentally when a Texas inmate paid $2,200 for the Colomb file but never received it. He sent an angry letter to the prosecutor on his own case complaining, ironically, that he had been robbed. The case against the Colombs unraveled, and the presiding judge called for an investigation. “The problem wasn’t just this case,” U.S. District Judge Tucker Melancon said. “We potentially have a huge problem with this network in the federal prison system.”

1.The Criminal Informant Deal

The Colomb case is just one example of how the use of criminal informants, and jailhouse informants in particular, distorts large swaths of our criminal justice process. Unlike many other countries, the U.S. criminal system permits the government to trade leniency for information, giving law enforcement wide discretion. Police can refrain from arresting a person who offers information about somebody else. Prosecutors can drop charges or recommend lower sentences in exchange for a defendant’s cooperation. This authority has created an enormous market for information and cooperation in the criminal process.  Defendants, inmates, defense attorneys, prosecutors, and judges all understand that leniency is available for those who offer useful information to the government. Cooperation is a way of “working off” sentences. This awareness affects the behavior of every player at every stage of the process.

Criminal informants are incentivized by a wide range of benefits to produce information for the government. The most common benefit is leniency for the informant’s own crimes, but informants also work for all sorts of things including money, drugs, improved conditions of confinement, or legal immigration status for themselves or family members. Government officials, conversely, have strong reasons to ignore informant wrongdoing and unreliability in order to win cases: Officials have been known to lie, break rules, cut corners, and even commit additional crimes to create, reward, and protect their informants. The entire market is challenging to track and regulate because so many of its operations are secretive and informal.  In all these ways, the informant deal threatens the integrity of the criminal process.

At the same time, using informants offers real benefits to law enforcement. Sometimes informants permit the government to investigate and convict offenders who would otherwise escape prosecution. The FBI’s use of mafia informants—some of them murderers—helped dismantle organized crime. Kenneth Lay, the corrupt CEO of Enron, was convicted based on the testimony of numerous cooperating defendants.  More broadly, the informant deal has become an integral part of American plea bargaining, a way of negotiating and resolving thousands of cases as well as generating evidence.

In sum, trading leniency for information is a risky public policy with deep implications for the entire criminal process. This piece explains an especially fraught version of that policy: the use and reward of jailhouse informants.

2.Jailhouse Snitches: An Especially Problematic Kind of Informant

Jailhouse snitches, sometimes referred to as “in-custody informants,” are a particularly risky and unreliable category of criminal informant.  Like all informants, they provide evidence to the government in the hope of receiving a benefit. But they have additional characteristics that make them especially poor witnesses. They are incarcerated, so they are surrounded by a ready-made supply of vulnerable targets who are already suspected of criminal conduct. At the same time, because jailhouse informants are under the control of jail officials, there are many benefits and incentives for which they can exchange information, including food, cigarettes, visiting privileges, phone access, and cell assignments.

Simply being in jail incentivizes informants to come up with information and educates them about how to do so. Prisoners learn from law enforcement and from other prisoners a wide range of practices and expectations about how to be a jailhouse snitch. While incarcerated, for example, detainees may acquire new skills in gathering and fabricating information, learning how to find news reports, how to steal other prisoners’ legal papers, recruit family members on the outside to do research, or to collude with other prisoners.  

The jail experience also teaches detainees that the government will often confer benefits in exchange for information even when no express promises have been made and no express instructions have been given. In Los Angeles, for example, an extensive jailhouse snitch scandal led to a 1990 grand jury investigation into informant abuses in the county jail. Law enforcement officials would place suspects in a “snitch tank” where seasoned jailhouse informants would extract information and fabricate confessions, which the informants would then trade to the government for leniency. The grand jury found that informant prisoners understood that being moved to a cell next to a defendant was an implicit instruction from the government to elicit information from that defendant, even if no government official expressly said so. The investigation also found that detainees would offer information to the government in anticipation of receiving benefits down the road, putting cooperation “in the bank.”

Prisoners also learn that their testimony is more valuable to the government if they can state they have not received or been promised a benefit. Seasoned snitches often invent pretextual reasons for their cooperation, for example, by claiming that they are disgusted by the defendant’s crime, or that they want justice for the victim. These lessons reinforce to informants the value of being entrepreneurial and going after targets without express government direction.

As a result of this jailhouse informant culture, law enforcement officials will often not need to instruct informants to collect or fabricate evidence because the culture will already have done so. This arrangement effectively permits an end-run around the Constitution. A defendant who has been charged with a crime has the constitutional right to counsel. In Massiah v. United States, the Supreme Court explained that the government cannot use informants to deliberately elicit information from such defendants without their lawyer present. Informants who collect information on their own, by contrast, are not considered government agents and therefore do not fall under the prohibition. Entrepreneurial informants can truthfully state that no government actor instructed them to collect information about a defendant, even though they received implicit encouragement to do so. Likewise, many jailhouse informants can truthfully state to the jury that they have not received or been promised any benefit, even though realistically they expect to and will be compensated for their testimony. Ironically, jurors will often be the only people in the courtroom who do not understand this arrangement.

Sometimes law enforcement officials simply ignore the law. Orange County, California, is reeling from an enormous and debilitating jailhouse snitch scandal in which sheriffs and district attorneys used informants for decades to extract information from inmates. The government failed to disclose its practices to defendants and to the courts even though it was constitutionally required to do so; some sheriff’s deputies perjured themselves when put on the stand. When the unconstitutional practices were finally uncovered, numerous homicide and gang cases throughout the county crumbled; a judge kicked the prosecutor’s office off a prominent capital case involving a mass shooting; the federal government initiated an investigation; and the ACLU filed a lawsuit. In Detroit during the 1990s, police ran a snitch ring on the ninth floor of the jail, offering leniency and other benefits to prisoners if they would testify against others. Hundreds of people were convicted as a result. These scandals reveal how jailhouse informants have become a deeply troubling feature of American criminal justice culture.

3.Can They Do That? The Constitutional Law of Jailhouse Informants

The government’s use of compensated criminal informants is highly discretionary and only lightly regulated. In Hoffa v. United States, the Supreme Court ruled that the government could use Edward Partin as a witness against union leader Jimmy Hoffa. Partin was in a Louisiana jail facing numerous charges, including embezzlement, manslaughter, and perjury, when he cut a deal with the federal government. He was released, charges were dropped, and he and his wife were paid. In exchange, Partin insinuated himself into Hoffa’s inner circle and then testified against him. The Supreme Court held that none of Hoffa’s rights were violated by this maneuver, largely because, as the Court saw it, Hoffa had relinquished any expectation of privacy when he voluntarily chose to engage with Partin. In other words, people assume the risk that their friends, family members, and colleagues might be snitches.

Jailhouse informants also provide a loophole in Miranda doctrine, which requires that suspects be informed of their rights before they can be held and interrogated by police. In 1986, the government placed an undercover police agent in a jail cell with Lloyd Perkins. The agent, posing as a violent criminal, asked Perkins if he had ever “done” anybody, and Perkins confessed to murder. The Supreme Court held that Perkins had no right to be Mirandized, even though he was being interrogated by a state agent, because he didn’t know he was speaking to an agent. This rule means that jailhouse informants can interrogate suspects on behalf of the government in ways that police are forbidden from doing without Miranda warnings.

Even if informants can extract information in entrepreneurial ways, they are not supposed to threaten their cellmates. In Arizona v. Fulminante, a jailhouse informant scared his cellmate into confessing. The Supreme Court held that confessions extracted through violent threats are involuntary and violate the Constitution’s due process clause. But it still happens. In the Orange County scandal, the government used violent gang members as informants who threatened other prisoners to get them to confess.

4.Wrongful Convictions

Perhaps the best-known problem with jailhouse informants is their unreliability. Bruce Lisker, for example, was wrongfully convicted of murdering his mother, based on the testimony of a jailhouse snitch. He was exonerated in 2009 after serving 24 years in prison. Thomas Goldstein served over 20 years for a murder he did not commit, based on the fabricated testimony of an experienced jailhouse informant named Edward Fink. As a result of the Los Angeles jailhouse snitch scandal, hundreds of convictions were overturned.

Large-scale studies confirm that wrongful convictions are a common result of informant use. The Center on Wrongful Convictions at Northwestern University Law School issued a report finding that over 45 percent of all wrongful capital convictions are due to lying by criminal informants, making “snitching the leading cause of wrongful convictions in U.S. capital cases.” According to The Innocence Project, 15 percent of DNA-based exonerations alone involve a lying informant. Professor Samuel Gross, founder of the National Registry of Exonerations, has estimated that nearly 50 percent of wrongful murder convictions involved perjury by someone such as a “jailhouse snitch or another witness who stood to gain from the false testimony.” These demonstrated risks of wrongful conviction have generated informant reforms in numerous states.

5.Prosecutorial Mistakes and Misconduct

Prosecutors often rely heavily on informants. This is especially true in drug enforcement, where it is often quipped that every drug case involves a snitch. Informants, however, are used to prosecute cases ranging from terrorism to securities fraud to murder, and prosecutors can become invested in their informants’ stories. One prosecutor described it as “falling in love with your rat”:

“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 mind set. … It’s a phenomenon and the danger is that because you feel all warm and fuzzy about your cooperator, you come to believe that you do not have to spend much time or energy investigating the case and you don’t. Once you become chummy with your cooperator, there is a real danger that you lose your objectivity.”

As a result, prosecutors may not see the weaknesses in their informants’ narratives. Legal scholars call this “tunnel vision”—when prosecutors are focused on winning cases, they interpret evidence in the light most favorable to victory. Once prosecutors decide to use an unreliable informant in a case, it becomes difficult to change course.

Sometimes prosecutors affirmatively engage in misconduct in connection with their use of informants, most commonly by failing to disclose evidence. In the landmark Brady v. Maryland case, the Supreme Court held that prosecutors must turn over all exculpatory evidence to the defense, meaning all evidence that might indicate the defendant’s innocence. This includes any information that an informant might be lying, so-called impeachment evidence, especially any evidence that the informant was promised a benefit. All too often, however, prosecutors do not disclose this information. In John Giuca’s murder case, the prosecution never disclosed that their jailhouse snitch had a deal. Giuca served 15 years before he was exonerated. Albert Burrell served 13 years for a murder he did not commit after the prosecution withheld evidence about the jailhouse informant.  Michael Anderson was granted a new trial after being sentenced to death in the killing of five men; the state did not disclose its deal with a jailhouse informant which the New Orleans judge called “a heck of a deal. It couldn’t have been any better.”

In Los Angeles, the grand jury discovered that the district attorney’s office intentionally refrained from keeping track of its own jailhouse informants to avoid having to disclose information to defense attorneys. As a result of such tactics, several states have introduced reforms that strengthen prosecutorial obligations to track and disclose information about their informants.

6.Bolstering Bad Forensics

Jailhouse informants can also exacerbate problems with weak forensic evidence.  Specifically, informants often come forward entrepreneurially when the government has a murder or other high-profile case.  When the evidence in those cases is already strong, the government may not need or use informants. But when the case is weak, at precisely the moment when prosecutors should be most concerned about wrongful conviction, the government may turn to jailhouse informants to bolster its case. As a result, there have been numerous instances where jailhouse informant testimony has corroborated unreliable forensic evidence, making weak cases look stronger than they actually were.

Cameron Todd Willingham, for example, was convicted and executed for the arson deaths of his children. His conviction rested on expert arson testimony corroborated by the testimony of a jailhouse snitch who came forward after being promised leniency by the prosecutor. Years later, the arson science was shown to be faulty, and the jailhouse snitch recanted his testimony, making it highly likely that Willingham was wrongfully executed. Jailhouse informant testimony has similarly been used to obtain convictions in cases involving dubious dog-sniff evidence and unreliable eyewitness identifications. The dangers of such wrongful conviction are built into the market for informant testimony because informants have the incentives and opportunities to provide evidence precisely when the government needs it the most and when the risks to the innocent are at their height.

7.Reforms

There is growing awareness that using informants, jailhouse informants in particular, leads to wrongful convictions and other miscarriages of justice. As a result, states are engaged in reform. Texas, California, Illinois, and Florida are among states have passed significant new laws; other states, including New York, Nebraska, Washington, and Pennsylvania, have introduced legislation. In 2018, the American Legislative Exchange Council proposed model jailhouse informant reform legislation.  

Three types of reform in particular have garnered support, and they represent best practices for regulating informant use. Pretrial reliability hearings permit judges to screen out the most unreliable snitches.  Tracking and disclosure systems help the government keep better tabs on its informants, better judge their credibility, and disclose all necessary information to the defense. Juror education is especially important because jurors are often not well-equipped to evaluate informant credibility. When jurors are misled, it leads to wrongful convictions.

A. Pretrial Reliability Hearings

Courts can hold pretrial hearings to evaluate whether jailhouse informant witnesses are reliable. Such hearings help avoid wrongful conviction in a number of ways. Judges who understand plea bargaining and jailhouse culture are well-positioned to evaluate whether informants, their criminal history, and the benefits they hope to obtain make them unreliable. The judge does not decide if an informant’s specific testimony is true or false—that is still the jury’s job. Instead, the hearing permits the judge to screen out particularly unreliable witnesses where the incentives to fabricate are enormous, where there is weak corroboration, and where jurors might not understand the risks.  Illinois requires reliability hearings for all jailhouse informants. The state of Washington has considered legislation that would require them as well.

B. Jailhouse Informant Tracking and Disclosure Systems

In the wake of the Los Angeles jailhouse informant scandal, the LA County district attorney’s office instituted a jailhouse informant registry and supervisory system to mitigate the risks of wrongful conviction and unconstitutional practices. This system offered the first model tracking system for all prosecutorial offices; as part of its response to its own scandal, the Orange County district attorney has promised to institute a comparable system. In 2016, Tarrant County, Texas, instituted an updated model policy.

Tracking systems involve collecting basic information about informants who offer evidence or who are used in investigations, including their criminal history, record of reliability, lying and recantations, and any benefits given or promised. In Los Angeles, before a prosecutor can use such a witness at trial, he or she must submit this information to an internal jailhouse informant supervisory committee, as well as “strong corroboration” for the informant’s proffered evidence. This mechanism creates a database of relevant information for prosecutors who can then evaluate the reliability of their witnesses and avoid wrongful convictions before they happen.

Tracking systems also promote disclosure. The Constitution requires the government to disclose impeachment material regarding informants, namely, any information that would cast doubt on the person’s credibility. Many states specify exactly what that material must include, such as the informant’s previous statements, his or her criminal history, benefits received or promised, any testimony in prior cases, and recantations. Tracking systems help ensure that such information is fully collected and properly disclosed.

C. Educating Juries: Instructions and Experts

Jurors need to be educated about the reliability risks of informant witnesses. It is a common misperception that cross-examination by defense attorneys is sufficient to discredit a lying informant. In fact, jurors are often unable to discern when an informant is telling the truth. For example, the dozens of informant-generated wrongful convictions documented in the Northwestern University report were overwhelmingly the result of trials. That means in each case, jurors heard the testimony and cross-examination and believed a lying criminal informant anyway.

Jurors can get it wrong for numerous reasons. Because informants’ liberty is at stake, they are highly motivated to create plausible testimonies, and their criminal background often makes them appear knowledgeable and persuasive. In addition, jurors often wrongly assume that because the government is offering the informant as a witness, it has additional information about the reliability of the informant and knows that the informant is telling the truth. This, of course, is not true. The government often doesn’t know whether its informant witness is lying. The phenomenon is sometime referred to as prosecutorial “vouching” and it makes informants seem more credible to jurors than they actually are.

Psychological research has also found that jurors do not fully understand the influence of compensation on an informant’s testimony. One study found that incentives made witnesses more likely to lie, but that even when jurors knew about the incentives they were just as likely to believe the informant witnesses.  Jurors also often underestimate the unreliability of informants. They do not necessarily understand the lengths to which informants can and do go to fabricate evidence because they have no experience with the phenomenon. They may not fully appreciate the impact that the hope of leniency can have on an informant’s willingness to fabricate. And they typically do not know that informants are rarely prosecuted for perjury, so there is little downside to lying.  

There are two main ways to educate jurors: jury instructions and expert testimony.

1. Jury Instructions

Numerous states as well as many federal jurisdictions require the court to instruct jurors regarding the special unreliability of compensated criminal witnesses. The standard instruction cautions jurors as follows:

The testimony of an informant who provides evidence against a defendant must be examined and weighed by you with greater caution and care than the testimony of an ordinary witness. Whether the informer’s testimony has been affected by interest or prejudice against the defendant is for you to determine. In making that determination, you should consider: (1) whether the witness has received or hopes to receive anything (including pay, immunity from prosecution, leniency in prosecution, personal advantage, or vindication) in exchange for testimony; (2) the extent to which the informant’s testimony is corroborated by other evidence; (3) the extent to which the details of the testimony could be obtained from a source other than the defendant; (4) any other case in which the informant testified or offered statements against an individual but was not called, and whether the statements were admitted in the case, and whether the informant received any deal, promise, inducement, or benefit in exchange for that testimony or statement; (5) whether the informant has ever changed his or her testimony; (6) the criminal history of the informant; and (7) any other evidence relevant to the informant’s credibility.

2. Experts

Expert testimony can also help jurors make more informed credibility determinations. The realities of jailhouse culture and informants’ expectations of benefits are not understood by the average juror: there is no reason that a non-expert would understand the sophisticated tools available to informants, or the ways that benefits are actually expected, deferred, and conferred. Accordingly, courts can bring in experts to testify at trial to assist the jury.  Such experts do not testify regarding whether any particular informant is lying. Rather, the expert educates the jury about common informant benefits and practices, jailhouse culture, and the implicit understandings that informants, jail officials, and prosecutors all share so that the jury can make a fully informed evaluation.

A Connecticut court explained why such experts are important. First, the court noted “the growing recognition by the legal community that jailhouse informant testimony is inherently unreliable and is a major contributor to wrongful convictions throughout this country.” The court went on to say that “jurors [are] not fully aware of the dangers in relying on informant testimony and that expert testimony could assist jurors in properly evaluating an informant’s credibility.”

Conclusion

Such reforms are just a beginning. Criminal informants are used in thousands of cases every year, sometimes as witnesses, often behind the scenes and off the record, shaping investigations and determining plea bargains. These informant deals—in which the government trades leniency in exchange for information—create an enormous, shadowy market that profoundly shapes the quality of American criminal justice. It is time that this market was brought into the light.

 

Alexandra Natapoff is professor of law at the University of California, Irvine. A 2016 Guggenheim Fellow, she is the author of Snitching: Criminal Informants and the Erosion of American Justice, which won the 2010 ABA Silver Gavel Award Honorable Mention for books.  She has helped draft legislation at both the state and federal levels and is quoted frequently by major media outlets.  Her website Snitching.org provides educational information on all aspects of criminal informant use and policy.

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Conservatives Are Obsessed With Prosecutorial Overreach

Unfortunately for millions of Americans, only one case matters: Trump's.

Theo Wargo / Getty Images

Conservatives Are Obsessed With Prosecutorial Overreach

Unfortunately for millions of Americans, only one case matters: Trump's.


One evening in June, Sean Hannity began his nightly Fox News show indignant about the “Mueller witch hunt.” It is a favorite topic of Hannity’s: A recent study found that, between May 2017 and May of this year, almost 60 percent of his opening segments focused on the special counsel Robert Mueller’s investigation of President Trump and his associates. This particular evening, he was irked by Mueller’s reported request for electronic information from certain witnesses. “[Prosecutors] are demanding that witnesses turn in their phones so that team Mueller gets to review all of their electronic communications.” Hannity said, his graying hair perfectly coiffed and his voice thick with outrage. “Even texts that are on encrypted apps.” He riffed some advice to the witnesses. “Delete all your emails and then acid-wash your emails and hard drives on the phones, then take your phones and bash them with a hammer to little itsy bitsy pieces,” he said. (Later, perhaps realizing that asking people to obstruct justice on national television is not a great idea, Hannity clarified that he was joking.)

Hannity isn’t alone. A May survey found that 76 percent of Republicans think the investigation is a “witch hunt,”while about 75 percent of Democrats consider it legitimate. Conservative personalities and politicians have been publicly wringing their hands, convinced that Mueller is guilty of exceeding the boundaries of appropriate prosecutorial power. The Federalist notes “a pattern of abuse of prosecutorial discretion,” citing Mueller’s decisions during his 12-year tenure as FBI director. The right-wing organization Freedom Watch has filed a federal suit against Department of Justice officials demanding Mueller be removed on account of his “gross prosecutorial misconduct.” And conservative site RealClearPolitics, in a commentary called “Special Prosecutorial Abuse,” characterizes Mueller’s investigation as a “crusade”: “The liberals worried about a police state? In some respects, it feels as though it’s already here.”

Whether Mueller is overstepping his authority is a matter of opinion. But this conservative indignance rings hollow. For over three decades, conservatives—and many liberals—have encouraged the expansion of prosecutorial power. They’ve sat idly by as the prison population exploded. They watched our criminal justice budget skyrocket. They’ve heard stories of primarily Black, brown, and poor people facing draconian punishments that far exceeded the alleged crime. And yet, many of them have looked the other way as prosecutorial discretion grew unchecked.

Tom Fitton, the president of conservative think tank Judicial Watch, claimed on “Fox and Friends” that “[Mueller’s] operation is the most secretive I can remember,” and that “it’s difficult to get basic information about what he’s been up to.” He failed to mention that opaque investigations are the norm. Prosecutors rarely provide information to defendants unless they absolutely have to. In fact, in 10 states, prosecutors can wait until right before trial to give evidence to the defense, including witness names and statements. Often, defendants have to negotiate a plea deal without even knowing if the state has any evidence against them.

Many Republican congressional candidates have claimed that Mueller’s investigation, which started last May, has lasted too long. Yet those same candidates say nothing about the epidemic of excessive pretrial delays in America, even in relatively minor cases. Waiting two or three years for a case to go to trial is not uncommon. And defendants who aren’t rich and connected often spend that time in custody simply because they can’t afford bail. In New Orleans, a man was found to have spent eight years in jail awaiting trial on a drug charge.

Some of Trump’s confidantes are especially hypocritical. Rudy Giuliani, Trump’s lawyer, also complained about the length of the Mueller probe, stating, “It’s about time to say, ‘Enough. We’ve tortured this president enough.” And after rumors circulated that Mueller had wiretapped Michael Cohen, Trump’s former personal lawyer, Giuliani said, “It’s not appropriate. I mean, he’s a lawyer. … [T]hey’ve already eviscerated the attorney-client privilege. This would make a mockery of it.”

In fact, as a former prosecutor, Giuliani often flouted the law, not only infringing on the rights of defendants but boasting about it. One of those rights was, of course, attorney-client privilege. Giuliani was infamous for “extensive wiretaps and the subpoenaing of defense attorneys,” the New York Times Magazine  wrote in 1985. He was also unapologetic. ”If I don’t tip in favor of law enforcement, who will?” he asked, according to the Times. ”The civil libertarians won’t.”

Lest we believe this is just one party’s problem, Democrats have been so blinded by  the Mueller investigation that some are pursuing punitive new laws in the hopes they might be used against Trump and administration officials. One of our most critical constitutional protections is the prohibition of double jeopardy, meaning the right to not be prosecuted twice for the same crime. There are exceptions to this rule: Depending on the state, prosecutors in state court and federal court may be able to both charge a person for the same action. But, generally, this ban on double jeopardy is an important shield against state power for defendants. Yet in New York, a bill that would make it easier to prosecute people twice for the same crime is garnering support because it could be used to prosecute defendants who have received pardons from the president.

As prosecutorial power has increased, so has the prison population, creating a mass incarceration crisis that has seen millions of people spend months, years, even decades of their lives languishing in jails or prisons. But prosecutorial overreach is usually unacknowledged by those decrying it today. Hannity has called the Mueller investigation a “monumental abuse of power” and has claimed that “Mueller is causing irreparable damage to the rule of law in this country.” But prosecutors have been causing irreparable damage for decades, with little attention from Hannity and his fellow conservatives. That damage is only compounded by the countless people in the Republican Party who seem to think that only Donald Trump deserves a more restrained justice system. 

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