The Appeal Podcast: The Problem With Jailhouse Informants

Jailhouse informants are a fixture of pop culture, helping TV prosecutors secure convictions in exchange for leniency or other favors. But the public—and by extension, juries—are largely ignorant of just how common, and how damaging, jailhouse informants are to the criminal legal system. This week, University of California, Irvine School of Law professor Alexandra Natapoff […]

Adam H. Johnson

Oct 10, 2019

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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. Remember, you can always follow us at The Appeal magazine’s main Facebook and Twitter pages and as always you can like and subscribe to us on Apple Podcast.

The jailhouse informant is a mainstay fixer on primetime cop shows used as a last resort by desperate prosecutors trying to get their man, but the public and by extension juries, are largely ignorant on just how common, conflicted and harmful the practice is on our system. This week’s guest, Professor Alexandra Natapoff at the University of California Irvine School of Law is a leading expert on the misuses of jailhouse informants and will join us to spell out how reformers are working to push back against this largely unregulated practice.

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Alexandra Natapoff: In our most serious cases, where defendants are facing the death penalty, the single largest reason why we get that wrong is because the government uses compensated criminal witnesses and juries believe them.

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Adam: Professor Natapoff thank you so much for joining us.

Alexandra Natapoff: Thanks so much for having me.

Adam: You wrote a recent article in The Appeal about the use of jailhouse informants. You wrote an explainer on the issue as well. Can we sort of lay out to our listeners what exactly a jailhouse informant is or otherwise known as a snitch and to what extent juries are permitted to listen to them and to what extent those jurors may not fully understand their conflicts of interests.

Alexandra Natapoff: Informants broadly refer to any defendant or suspect in our criminal system who is offered a deal, who cooperates or provides information to the government in exchange for some benefit. The most famous benefit, of course, is leniency. A leniency for their own crimes, either a shorter stint or the ability to avoid charges altogether. And the use of informants is an enormous and central part of the way we run our criminal system. You can understand it as a kind of off the books form of plea bargaining. We don’t often keep track of it, but it is a form of negotiation that is legal, tolerated and very common throughout all kinds of cases in our criminal system. Jailhouse informants are a subset of informants. Technically they’re just informants who happen to be incarcerated at the time that they offer information or negotiated a deal with the government or are approached by the government in expectation of providing information and a deal. And the reason we focus on jailhouse informants in addition to other kinds of informants is we have a lot of — I shouldn’t say a lot in this realm because we have very little information in this realm but comparatively speaking — we have quite a bit of information about jailhouse informants. We know that they are a substantial source of wrongful convictions. There have been a number of very high profile scandals around the country. There’s an ongoing one here in Orange County right now regarding the use of jailhouse informants because they have triggered so many scandals and so many wrongful convictions we have paid more attention to them. There have been more lawsuits, more investigations, more media and legislative attention to jailhouse informants because their risks and costs have become more apparent over the past decade or so.

Adam: Yeah. So you note a 2004 Northwestern University School of Law study that found that 45 percent of people who were innocent, found innocent on death row, that 45 percent of those convicted that the deciding factor was a lying criminal informant, which is really high. That’s extremely high. Can we talk about the sheer kind of scope of informants just on cases we know where the person was innocent and to what extent are they sort of used as a crutch by district attorneys to kind of get a somewhat weak case over the goal line?

Alexandra Natapoff: So I just want to double down on your comment about how high that is: 45 percent. That’s an astounding number. What that report told us, and that report grew out of the innocence movement. It was created by the Innocence Project at Northwestern University Law School. It was the result of renewed attention to wrongful convictions. And as a result, it told us, as the report put it, the single largest source of wrongful capital convictions in the United States are snitches, are informants. And that’s really an incredible thing to know that in our most serious cases where defendants are facing the death penalty, that the single largest reason why we get that wrong is because the government uses compensated criminal witnesses and juries believe them. So it’s worth, we’ve learned a lot since 2004, since that report came out, but it’s worth remembering just how shocking that finding was and is and the magnitude of the problem. You asked me to talk a little bit about if we know that they’re so risky and we know that they lead to wrongful conviction, even in the most serious cases where hopefully we’re paying the most attention, where the legal system is attending most carefully to the outcome, why do we continue to use them? Why do prosecutors continue to use them? And there’s a practical answer and a structural answer. The practical answer is that informants are cheap and easy to use. You don’t need a warrant. You don’t need anyone’s permission. Law enforcement doesn’t need anyone’s permission to create an informant. If the informant agrees to cooperate, then there are almost no constraints on the government’s ability to use them. They don’t have to tell anyone because we under-regulate this process. And so not until trial, not until a defendant is charged in a case that involves informants do we even get disclosure requirements required by the Constitution. And so in many ways the law incentivizes the government to use informants because we make it so easy. We have an adversarial system. We reward police and prosecutors and law enforcement for winning, for making and winning cases. And so when you give them a very powerful tool to win, we should expect that they will use that tool. And that gets to the structural reason, which is American law both incentivizes and permits the relatively unfettered use of informants. So we create incentives within the criminal system to use them but then the law permits those things and so we’re only really just starting to grapple with how under-regulated this space has been for so long.

Adam: And just to be clear, this is just, for the purposes of this episode, we’re just talking about jailhouse informants. There’s actually a whole other world of informants, informants that, you know, the FBI has an estimated 15,000 informants depending who you ask that they use specifically on Muslim and black populations. But we won’t go into that. So this is sort of one subset of a bigger informant culture. And let’s talk about these, you mentioned how widespread it was, how systemic it is. I want to talk about the systemic conflicts of interest that emerge when you pay people to say that so-and-so said someone, and to what extent, I think the people listening to this would say, ‘oh well if there’s a, you know, a testimony from an informant, there has to be some like recorded proof’ that they’re wearing a wire or there’s some sort of cooperating evidence, that it can’t just be the word of some random guy who’s getting paid. Can we talk about that and to what extent there’s any kind of third party verification of any of this?

Alexandra Natapoff: Yeah, that’s a good point because I think people are surprised at just how deregulated this arena is. So it’s deregulated in part because we permit law enforcement and the government to use informants, but it’s deregulated in the sense that we don’t impose very stringent requirements on that information, on that testimony, which of course is why it so often leads to wrongful conviction because we don’t put that much pressure on the government to get it right. For the most part, and again this is changing because there have been some very important reforms recently in light of our deeper understanding of just how unreliable this information can be, but for the most part, decades ago the Supreme Court upheld the use of compensated criminal witnesses of informants and they held that it did not violate due process for the government to pay its witnesses and then use their testimony and it decided that defendants were sufficiently protected against lying informants against fabricated information by three things. One is that the government is supposed to disclose what we call impeachment evidence. Evidence, for example, of the deal that the informant is getting. The informant is subject to cross-examination in front of the jury. So the jury will hear questions that the defense is permitted to ask that informant. To test whether the informant might be lying and then the jury in some jurisdictions might be instructed that a compensated criminal witness might have special reliability problems. And if all that happens, the Supreme Court said, then at the end of the day it’s up to the jury to figure it out. And it’s worth thinking about just how little help we give juries in figuring out whether informants are lying. You mentioned a moment ago, you know, is there a requirement for a recording or any kind of corroboration? And for the most part, no. The government is permitted to use an informant and leave it to the jury to work out whether they’re telling the truth or not. Indeed, we often hear from prosecutors admitting that they themselves don’t know whether their informant is lying, but that it’s up to the jury to figure it out. So there’s a kind of punting to the end of the process. And as we know, all too often this leads to wrongful convictions because jurors actually are not as good as we would like and would need them to be to figure it out.

Adam: Which is strange because the information is routinely withheld or given to juries based on notions of relevance and whether or not they’ll be prejudiced. So it seems strange that they would say, ‘oh well this is, you know, leave it to some nebulous jury’ that way no one is really responsible for, you know, a paid liar getting into the courtroom. You write that in addition to this, so this kind of this unseemly subprime market. I want to kind of talk about the economics of this for a second. The system you write quote, “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.” So basically you have a subprime market of, or rather I should say, second-order market of snitches who will find cases themselves that way they will be way more credible if and when they’re called to testify. Can we talk about this phenomenon? I found this very, very kind of disturbing.

Alexandra Natapoff: So you’re right to call it an unseemly market. These are not one-off deals or niche phenomena. There’s a whole world of understanding, of education, of exchanges, of experiences that constitute this market throughout the American criminal system. It’s built into our law. Every defense attorney, every prosecutor, every judge, every sheriff knows that this is part of the negotiation and therefore people in jails know it. People who are facing criminal charges know it. When people who are experienced criminals are repeat players know it. It infuses the way we do criminal justice. Ironically, it may be that the only people who don’t know this is the jury who ultimately have to decide whether people are telling the truth or not. So as a result of these understandings, informants often understand what it takes to make their information, their evidence or their testimony more valuable to the government and therefore more valuable for them. In other words, triggering greater rewards, greater leniency, greater impunity even to commit their own crimes. The more valuable an informant is the more rewards they’re likely to get from the government. And everyone understands this and one of the phenomena that we’ve seen in the jailhouse informant context, in particular, is this kind of quite sophisticated entrepreneurial creation of the right kind of testimony. Seasoned jailhouse informants understand that their testimony is most valuable and most persuasive to juries when they can truthfully say that they have not been promised anything. And so there are all these workarounds in the system whereby informants may respond to unstated cues by law enforcement or understand on their own what they are expected to do in order to get information to trade to the government in which nevertheless they can truthfully get on the stand and say that no government official expressly promised them anything but they know, they know they will be rewarded, indeed later on they are rewarded and everyone in the courtroom, except possibly the jury, understands that that is why they did it in the first place and that they will indeed be rewarded in some way. So you talked about the unseemly market, but it’s a black market in many ways. Its workings are secretive and it doesn’t disclose its own workings at the most important moment, which is, you know when we’re deciding whether to convict somebody.

Adam: If something is later revealed that a jailhouse informant says can be proven as objectively false. For example, they will say, they said, ‘ohI overheard someone say they were in Cleveland’ and then later they find out they were actually in Seattle. Like something that sort of objectively can be proven to be a falsehood, something they could not have possibly overheard or witnessed. Is there any sort of punishment for that or is it kind of like a, you can just make up whatever you want and there’s no real recourse for that?

Alexandra Natapoff: So two things to note about that. One of the misconceptions that people might have is that if a jailhouse informant later is found to have lied, then the defendant who was convicted based on that false testimony would be exonerated. But that is far from automatic. It is very, very difficult to get that information back into court. There are many barriers. So it turns out that the exonerations that we do have and the wrongful convictions we know about are likely just the tip of the iceberg in cases that managed to sort of thread that very, very difficult needle based on, for example, an informant or newly discovered evidence. It’s very, very hard. And moreover, as you point out, it’s very rare for informants to be punished. In other words, there’s almost no downside to lying.

Adam: Right That’s what I’m thinking. You basically, it’s an open market just to bullshit and there’s no real downside to any of it.

Alexandra Natapoff: So the most common downside is if the government figures out that you lied, you might not get your deal.

Adam: Oh okay, right.

Alexandra Natapoff: So you’re back to square one. You’re in exactly the same position you were in before you became an informant and before you lied. Perjury prosecutions for lying informants are extraordinarily rare. It’s hard to think of more than a handful of instances. And the reason is, as we’ve been discussing, these are not one-off deals. This is a market. And so it’s well understood that prosecutors, if they turn around and prosecute their own informants, it will be hard for them to recruit the next one. They will not be seen as good dealmakers for the potential informants coming later. And there are strong disincentives for the government to do that. They rely on informants, they want that kind of entrepreneurial quality. It gets them evidence, good or bad.

Adam: It also could taint any of the other cases this informant testified on. Right.

Alexandra Natapoff: And there are also, as you say, there are institutional reasons why the government might not want to prosecute its own informants. Not only because it would disrupt its own market for information, but also because it would create a record of its own potential carelessness, perhaps it did, as we have seen in so many cases, so many instances where the government did not disclose everything that it was supposed to disclose to the defendant and if the government turns on its own informants, that’s kind of opening up a window on its own practices that in an adversarial system there are very strong disincentives to do.

Adam: So let’s talk about reform then. Obviously this isn’t the first time this conversation’s happened. I know that in legal academia this has been an issue for a long time. Obviously you’re one of the leading experts on attempts to reform this. I know Connecticut just passed a law, as you mentioned, that attempts to curb some of the misuses and abuses here. Can we talk about this law? What is good about it and what are some of the things that can be strengthened and what does this portend for other states potentially moving forward?

Alexandra Natapoff: So it’s actually been a really exciting decade for informant reform. 20 years ago, no one was talking about this question. It was just a subrosa black market, as you put it, an unseemly black market of information. There was very little, not just regulation, but attention to the problem. And it’s really been broken open as an issue in the last 10 to 15 years in large part, if not exclusively, because of the innocence movement and the recognition of just how often compensated criminal witnesses lead to wrongful convictions. Although for other reasons as well. So you mentioned Connecticut, Connecticut, just, it was in July, just passed wonderful, important new reform legislation that requires more transparency with respect to informants. So the government is now in Connecticut, the government is required now to keep, to create, keep, and then disclose more information about jailhouse informants that it uses. And then Connecticut also created a mandatory pretrial reliability hearing in rape and murder cases. And let me just say why that’s so important. So one of the challenges here is that we’re relying so heavily, at the end of the day, on jurors who are not experts in criminal justice, who are not, you don’t have no reason to understand, you know, what the incentives for lying are. They may never have seen a trial, they may never have seen anyone be cross-examined. And in these very serious cases, Connecticut created a requirement that judges essentially pre-screen informants in rape and murder cases. And this is important for two reasons. One is that rape and murder cases, because they’re so high profile and so serious, the potential rewards for informants can be very high. And so there’s just profound incentives for informants to be especially entrepreneurial in this arena. Often people will know that a defendant has been charged with a very serious offense. It’s in the newspaper. Informants famously scour newspapers and court records to get information. And so it’s a very high-risk space for informants to engage in fabrication and collusion. So that explains in part why Connecticut singled out these particular cases. Although, I have written and advocated in the past that reliability hearings should be available in all cases involving a compensated criminal witness, that that rape and murder cases are just the most extreme example. But in every case we should be worried that these informants, you know, have these incentives. And then what these reliability hearings do is they permit judges who are experienced courtroom players, who understand the system to put the government to its burden of showing why any jury should be able to hear these witnesses in the first place. And judges can look, for example, at the rewards that might be forthcoming or that have been promised. An informant’s history, what their incentives to fabricate might be, testimony that they’ve provided in previous cases. Many of these are repeat players and judges are in a particularly good position to evaluate that kind of information to decide that an informant is so unreliable that they should not be permitted to testify at all. And as you pointed out a few moments ago, we do that with evidence all the time. Judges are always screening evidence, they screen documents, they screen experts, they screen everything and it’s a way of bringing informants into the mainstream criminal justice regulation to say, you know what? This is particularly unreliable evidence. We should treat it the way we treat all evidence, which is to give the judge tools to take a look at it.

Adam: Is there any group people should check out maybe online or sort of follow up on this?

Alexandra Natapoff: There’s wonderful litigation and legislation going on all across the country. I keep track of a lot of it on my blog Snitching.org it’s an educational website and folks who are interested in reform efforts, Snitching.org and there’s a legislation section which lists all the new reforms and bills and efforts all over the country and in over a dozen states. It also keeps track of new litigation, important cases that are being filed and litigated and then major news stories, major revelatory news stories on the blog section for people who are interested and so that people can understand the scope of this issue. Just how many aspects of the criminal system it affects. The Innocence Project in New York is doing wonderful work in this space so you can check out InnocenceProject.org. And the National Registry of Exonerations which is based here at UC Irvine keeps track of all the wrongful convictions around the country but in particular ones that are based on informant use and if folks want to look up the cases, the wrongful convictions that have been affected by the use of informants they can look at the registry.

Adam: Professor, thank you so much for joining us. This was fantastic.

Alexandra Natapoff: Thanks so much for having me.

Adam: Thank you to our guest Professor Alexandra Natapoff. This has been The Appeal podcast. Remember, you can always follow us at The Appeal magazine’s main Facebook and Twitter page and as always, you can like, rate and subscribe to us on Apple Podcast. The show is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer Cassi Feldman. I am your host Adam Johnson. Thank you so much. We’ll see you next week.