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.
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.
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.
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.”
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.