Tuesday, June 24, 2014

Snitches: The Government's Overreliance on Informants in the War on Drugs

In recent decades the United States has entered into multiple unconventional wars where it seems that victory will not be obtained until the enemy is eradicated.  One such war is the war on drugs.  It is unclear what a “win” in the war on drugs would look like, and the ambiguity leads to an ongoing fight, but the fight has become a dog eat dog battle of survival of the fittest.

The war on drugs began in the 1980’s as a response to the public opinion that Democrats were soft on crime.  To avoid this public perception before the 1986 election, Democrats came out strongly against drugs.  They introduced the Sentencing Reform Act of 1984 and the Anti-Drug Abuse Acts of 1986 and 1988.  Because both parties were anxious to appear strong on this issue, the legislation was passed quickly and without much scrutiny.

The United States Sentencing Commission (USSC) website contains a study on United States drug law entitled, “Report on Cocaine and Federal Sentencing Policy: The National Legislative and Law Enforcement Response to Cocaine.”  In this report the USSC explains that the Anti-Drug Abuse Act of 1986 created a basis for mandatory minimum sentencing for drug crimes.  These mandatory minimum sentences fall into two categories – five years or ten years based on the type drug and amount of the drug involved in the offense.  The purpose of mandatory minimums was to harshly punish those most involved in drug trafficking in an effort to cut off supply.  The laws were intended to focus on drug traffickers at the top of the drug trade.  The tough mandatory sentences were designed to go after “‘major’ traffickers (ten-year minimum) and ‘serious’ traffickers (five-year minimum).”  However, the reality today is that triggers for mandatory minimum sentences are well below what a major or serious trafficker would likely possess.  Below is a graph that shows the types of drugs that trigger mandatory minimum sentencing and the amount of each drug that is necessary to trigger the mandatory minimum sentence.

Information for graph is from Families Against Mandatory Minimums
These unforgiving triggers have led to a dramatic increase in the number of drug convictions in the United States.  The relatively low threshold necessary to trigger a mandatory minimum sentence has created a burden for the justice system and a large group of people who are desperate to avoid serious jail time.  This desperation has lead to a phenomenon of snitching.  

In order to avoid jail time or reduce their sentences, people are willing to give up information they have on other drug users.  The government is able to use this information to find more serious offenders.  However, it is often the offenders most heavily involved in drug trafficking that have the most access to information about others.  This leads to the worst offenders cutting deals because they are able to implicate people below them. 
Other concerns have also been raised about the use of snitches, or government informants, in the drug enforcement field.  One concern pointed out by the ACLU is the government’s dependence on informants in drug prosecution.  They cite to research that suggests that up to 80% of drug cases in the United States are based on informant testimony.  The analysis specifically points out the lack of government oversight in the informant process, as well as the natural tendency that people have to lie when they are put in a position where it is easy and stakes are high.  On the FBI website, the Bureau admits these risks by saying the “use of informants to assist in the investigation of criminal activity may involve an element of deception, intrusion into the privacy of individuals, or cooperation with persons whose reliability and motivation may be open to question.”  These unclear guidelines are accompanied by a reality that physical evidence is not necessary to prove the existence of a quantity of drugs in order to verify an informant’s testimony.  An informant can lie about the quantity of drugs possessed by others in order to appear more useful to law enforcement, and therefore, to cut a better deal for themselves.
Another concern is that the government is compelling untrained individuals to be involved in undercover police sting operations.  These desperate people agree to work with little legal protection in exchange for a promise that they will be rewarded with sentence reductions or money.
Statistics suggest that the war on drugs is not over, and the end is not in sight.  In the past thirty years, the use of government informants in drug enforcement has not made a significant dent in the drug trafficking pyramid in American society.  Drugs are readily available throughout the United States and the current system is spiraling out of control with high conviction and imprisonment rates of drug users and traffickers, but a steady stream of new buyers and sellers.  How and when will the war on drugs end?  It seems self-evident that the current system of mandatory minimum sentencing and reliance on government informants is not the answer.
However, if the practice is to continue, prosecutors and defense attorneys must be more diligent and thoughtful in their use of informants to assure accurate results and due process are preserved. In a series of memorandums, the ACLU of Texas outlined recommendations for how the use of informants could be improved. One suggestion is that the process could be more transparent by including information about the informant on the warrant. This leads to more informed decisions by judges about the appropriateness of using each informant. It also assures that defense attorneys are aware of the situation. It would allow prosecutors to have more information so that they could corroborate the testimony of the informant.
Other improvements include holding reliability hearings to determine the reliability of informants, and providing information to all parties on the informant before a plea bargain is reached. This would allow prosecutors to obtain more information about the situation. With this knowledge they would be able to better spot inconsistencies, which would lead to more accurate accounts. Also, defense attorneys would be able to better inform their clients so that they could make more informed decisions. There are various improvements that can and must be made to improve the use of government informants in the United States.

Kathryn Kimball
Staffer, Criminal Law Practitioner

Photo by George Kelly via Flickr.

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