(a) Agencies should establish clear boundaries regarding the involvement of informants in criminal activity, including the extent to which it is permissible. Such involvement should be restricted to acts that are of substantial value to agency efforts to achieve public safety, and should be based on advance, written authorization.
(b) Any involvement of informants in criminal activity should be conducted in a manner that minimizes harm to the public and the informant.
(c) All criminal activity by informants, whether authorized or not, should be reported by informants to the agencies with which they work. Agencies should monitor and document such activity.
a. Crimes by informants. Agencies should ensure that their goal in using an informant is to prevent the commission of crimes, and that such use does not unduly facilitate ongoing criminal activity or delay an end to that activity. In some circumstances, using informants in ongoing criminal activity may be unavoidable, and even quite valuable, in order to ensure an investigation’s success. However, given the public-safety risks of using informants who are engaged in ongoing criminal activity, law-enforcement agencies should adopt written procedures to limit such use. It should be limited to high-value investigations and to acquiring information that could not otherwise be obtained. Authorization for an informant to engage in otherwise illegal activity should be sought by an officer, in advance, from supervisors within the agency. Authorization should provide clear, written instructions, setting out the parameters of the use of the informant, and authorizing such conduct only for a defined period of time.
b. Harm-minimization. In the past, the involvement of informants in criminal activity, including serious crimes, has been too often tolerated, and has not been governed by clear policies. The result has been harm to public safety and the safety of informants, as well as injury to the legitimacy of agencies. Written policy governing the use of informants who are engaged in criminal activity should include substantive limits to ensure that the risk of injury to officers and the public is reduced to the fullest extent possible. See § 1.04 (Reducing Harm). There should be clear boundaries delineating what criminal activities will be tolerated.
c. Monitoring and supervisory approval. In order to minimize criminal activity by informants, law-enforcement policies governing the use of informants should require that all criminal activity by informants be monitored and documented. Informants should be required to report all criminal activities. Policies governing the monitoring of informants should include, whenever possible, a requirement that an officer obtain approval from a supervisor, in advance, of any ongoing criminal involvement by the informant. Requiring supervisory approval can help ensure that such use is carefully restricted and minimized, consistent with the overall goal of public safety and security. In addition, agencies should track the crimes committed by informants on whom they systematically rely—past and present, authorized and unauthorized. A database may facilitate such tracking and permit evaluation over time as to whether it is consistent with public safety to allow a particular informant to participate in ongoing criminal activity.
The use of informants often necessarily includes their involvement in ongoing criminal activity, and, for that reason, ongoing review, documentation, and clear boundaries are essential to limit public-safety risks.
Criminal conduct by informants may be far more common than is widely appreciated. See Andrew E. Taslitz, Prosecuting the Informant Culture, 109 Mich. L. Rev. 1077, 1081 (2011) (“Many handlers give free rein to informants to do as they please in committing new crimes, with some actually aiding informants in gathering the resources to engage in criminal conduct”). For example, at the federal level, “the U.S. Department of Justice’s 2005 report indicates that 10 percent of the [Federal Bureau of Investigation’s] informant files contained evidence that the informant was committing unauthorized crimes about which the government knew.” Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 32 (2008); see also Brad Heath, Exclusive: FBI Allowed Informants to Commit 5,600 Crimes, USA Today (Aug. 4, 2013, 6:12 AM), https://www.usatoday.com/story/news/nation/2013/08/04/fbi-informant-crimes-report/2613305 (“The FBI gave its informants permission to break the law at least 5,658 times in a single year”). This statistic accounts for just those crimes that the government has learned of and documented.
The U.S. Department of Justice, Office of the Inspector General, Report concluded that serious misconduct has occurred when informants were mishandled, and “[f]ederal criminal prosecution of FBI informants can result from the informant’s unauthorized criminal conduct or from situations in which the informant exceeds the scope of his authority to engage in ‘otherwise illegal activity.’” U.S. Dep’t of Just., Off. Inspector Gen., Special Report (2005). Similar concerns have been raised at the state and local levels. See, e.g., George Hunter, Detroit Police Rein in Use of Paid Informants, Detroit News (Dec. 25, 2015, 11:45 PM), https://www.detroitnews.com/story/news/local/detroit-city/2015/12/25/detroit-police-informants/77914176 (providing an example at the local level, when outcry followed news that Detroit police officers had allowed and even incentivized informants to sell drugs). Although a number of police departments forbid informants from committing additional crimes, other municipalities do not have any outright prohibitions on such conduct. Taslitz, supra, at 1080; see also Orange Cnty. Sheriff-Coroner Dep’t, Orange County SD Policy Manual § 608.5, available athttps://www.ocsd.org/civicax/filebank/blobdload.aspx?BlobID=116389 (“Criminal activity by informants shall not be condoned.”); Syracuse Police Dep’t, General Rules & Procedures Manual § 17.13, athttp://www.aele.org/law/2007FPAPR/informants-syracuse.html (“Informants must not self-initiate plans to commit crimes nor solicit persons to act in an illegal manner.”). Special concerns also have been raised concerning the use of confidential informants in law enforcement investigations of organized drug dealers. Such investigations “almost always” involve informants, and those informants may have “questionable motives” and be “perhaps the most difficult to manage.” G.D. Lee, Drug Informants: Motives and Management, 62 FBI Law Enforcement Bulletin 10 (1993).
Criminal activity by informants poses a harm to the public. Indeed, informants may feel that due to their relationship with law enforcement, they can engage in criminal acts with impunity. See Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 109-110 (2008) (“[O]nce a criminal agrees to provide information to the government, he may continue to commit new offenses on his own initiative to which police and prosecutors may or may not turn a blind eye.”). Informants also routinely engage in unauthorized criminal activities, often with the understanding that the government will turn a blind eye or under-enforce the law as long as the informants remain useful. See, e.g., Everything Secret Degenerates, supra; Natapoff, supra, at 32-33; Pamela Colloff, Feature: How This Con Man’s Wild Testimony Sent Dozens to Jail, and 4 to Death Row, N.Y. Times Mag. (Dec. 4, 2019). Informants may receive leniency for their criminal conduct as part of arrangements with law enforcement. See Natapoff, supra, at 49 (“In practice, prosecutors are often willing to drop or reduce charges against someone who is cooperating with law enforcement”). Informants also may fail to provide reliable information and, as a result, hamper efforts to end criminal activity. See generally Jessica A. Roth, Informant Witnesses and the Risk of Wrongful Convictions, 53 Am. Crim. L. Rev. 737 (2016) (discussing the unreliability of informant information).
The prevalence of and harm caused by criminal activity by informants supports the adoption of carefully considered and well enforced policies regarding the nature and limits of such activity, as well as ongoing monitoring, tracking, documentation, and supervision. There is no single set of best practices regarding agency policy in this area. However, there are notable examples of policies that agencies have adopted. The Federal Bureau of Investigation (FBI), for example, has detailed rules regarding the use of confidential informants, including rules that address the risks involved when they engage in “otherwise illegal activity,” as well as rules that specify when supervisory approval or approval by a U.S. attorney is required. The Federal Bureau of Investigation’s Compliance with the Attorney General’s Investigative Guidelines (Redacted) Special Report Chapter 3 (2005). The FBI distinguishes between authorized and unauthorized criminal activities by informants. There are two main allowances of “authorized” criminality: “(1) to provide opportunities for the suspects to engage in the target crime, and (2) to maintain a false identity or to facilitate access to the suspect.” Elizabeth E. Joh, Breaking the Law to Enforce It: Undercover Police Participation in Crime, 62 Stan. L. Rev. 165 (2009). According to the FBI, authorized criminal activity poses problems beside the potential for serious harm to victims of these crimes, including: “the lack of transparency about basic information regarding authorized criminality, the exercise of unfettered police discretion, and the moral ambiguity that arises when police engage in criminal activity in order to pursue criminals.” Id. at 181.
The FBI and other federal agencies require that any engagement by an informant in illegal activity be authorized in advance, with clear instructions, for a defined time period not to exceed 90 days, and with clear parameters. GAO, Confidential Informants: Updates to Policy and Additional Guidance Would Improve Oversight by DOJ and DHS Agencies, GAO-15-242SU (Washington, D.C.: Mar. 6, 2015). Written instructions are provided to the informant, and signed by the informant, regarding the parameters of the authorized and otherwise illegal activity. Such instructions and documentation procedures always should be followed.