Snitching

reviewed by Ben Pesta

No one likes a snitch.That old playground maxim is as true today as it was in kindergarten. The police and federal agents who handle snitches, and the prosecutors who build cases from their information, distrust them. Defense attorneys regard them as vermin. Neighbors whisper about them. Those on whom they inform want to kill them, and sometimes do. "On that road of the informer, it is always night," wrote Whittaker Chambers, arguably America's most famous snitch, and also a bit of a plagiarist (lifting from A. E. Housman here). Chambers knew all about it.

On television, cops solve crimes by uncovering clues. But in real life, police solve crimes when somebody talks. For example, Charles Manson wasn't a suspect until Susan Atkins tried to bargain her way out of a car-theft rap by telling police that she knew about some murders. In the words of one former FBI operative, "You can't get from A to B without an informant."

In Snitching: Criminal Informants and the Erosion of American Justice, Loyola (Los Angeles) law professor Alexandra Natapoff has written analytically and creatively about informants and their handlers. "The central defining characteristic of snitching is the deal between the government and a suspect," she writes. What is remarkable and ominous about such a deal is that its terms so often go unrecorded. The laws regarding what law enforcement can and can't do with snitches are few, and frequently disregarded. The author states: "In the context of negotiating with informants, prosecutors have near-complete latitude." The latitude of police, who make the initial street-level contacts and bargains with snitches, is even wider.

Natapoff argues persuasively that the almost universal use of snitches to make criminal cases undermines public respect for the law. People perceive, correctly, that there is a two-tiered system of justice: one tier in which sentences are literal, and another for those who have information the authorities want to know, in which no crime is too serious to be bargained away. No crime too serious includes murder. Even the FBI, governed by guidelines drafted specifically for the bureau, has employed murderers as informants. Occasionally, a murderer has kept on murdering even while he was in the pay of the FBI. A 2004 congressional hearing produced a report titled, "Everything Secret Degenerates: The FBI's Use of Murderers as Informants."

The author's prescription for reform includes pretrial hearings on the reliability of informants and their statements (Illinois, Nevada, and Oklahoma already have these), a corroboration requirement, expanded discovery of the informants' histories, written guidelines for police and prosecutors similar to those used by the FBI, the involvement of counsel at the early stages of contact, and the creation of "an independent authority to award cooperation benefits to informants who provide information or testify on behalf of the defense." All of these are good ideas, but they all run counter to the current public attitude, which is: They're all criminals anyway, so let the police and the prosecutors at 'em. Had Susan Atkins lawyered up, she wouldn't have tried to deal off a grand theft auto charge with mass-murder information. And as things stand now, California's electorate probably doesn't want informants to be better informed about their options.

Ben Pesta is a white-collar and criminal defense lawyer and writer based in Century City.

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