Agencies should conduct oversight to ensure that any benefits offered or provided to informants, including financial compensation, are proportional to the public’s interest in securing reliable information.
a. Proportionality. Agencies should consider carefully what benefits they offer or provide to an informant. All too often, informants have received excessive financial compensation or unwarranted leniency in criminal cases, or they have had expectations that they would receive excessive benefits if they cooperated. It harms the legitimacy of law-enforcement efforts if informants are seen as profiting financially or avoiding criminal responsibility for their acts in exchange for providing information that is not of sufficient value. For this reason, agencies should ensure that any benefits informants expect or receive be proportional to the value that law enforcement obtains from securing their cooperation. An informant who, at personal risk, provides inside information regarding a serious criminal conspiracy arguably should receive quite meaningful benefits. In contrast, an informant who repeats information that law enforcement could independently gather from public sources should not normally receive meaningful benefits.
b. Limits on benefits. Agency policies should set clear limits and boundaries on the benefits provided to informants. Such constraints can go beyond simply requiring proportionality. For example, they may set out absolute limits on financial benefits provided to informants to ensure that such benefits are not abused. Agencies also may delineate categories of cases or informants that should be ineligible for compensation, or types of cases ineligible for leniency, including because serious ongoing criminal conduct is involved. Law enforcement should not provide to informants incentives that themselves constitute crimes; thus, incentives must be confined to lawful benefits and compensation, and not, for example, illegal drugs or other criminal proceeds. Conversely, agency policies should set clear limits on pressures or harms threatened in order to induce cooperation by informants.
c. Role of prosecutors. Sometimes, prosecutors, rather than policing agencies, enter into agreements to provide benefits to informants. To prevent any misunderstanding, agency policy should set out respective authority to reach agreements with informants. Coordination and information sharing is necessary if both agencies obtain agreements with informants. In addition, the proportionality of benefits that policing agencies provide to an informant should take into account any further benefits that prosecutors might offer.
d. Auditing. Agencies should conduct auditing and oversight to ensure that benefits provided to informants are documented, and that all benefits provided comply with agency policies.
Informants may have a wide variety of motives for cooperating with law enforcement. Informants may be motivated by “fear, financial gain, avoidance of punishment, competition, and revenge.” Jessica A. Roth, Informant Witnesses and the Risk of Wrongful Convictions, 53 Am. Crim. L. Rev. 737, 765 (2016). But the key motive for their cooperation is that they are, by definition, witnesses who expect to receive benefits and avoid harms in exchange for information. As such, they may be driven to engage in dangerous conduct or to produce unreliable or fabricated statements. Indeed, one persistent challenge with the use of informants is that their motivations necessarily include some degree of self-interest, which in turn raises reliability concerns. See U.S. Dep’t of Just., Off. Inspector Gen., Audit Division, The Drug Enforcement Administration’s Payments to Confidential Sources: Executive Summary 2 (2005). “Although informants’ motivations in some cases may be complex, the very nature of the cooperation transaction requires a presumption that an informant’s primary incentive is to obtain a benefit and that this incentive creates a strong bias that colors his or her testimony.” Roth, supra, at 765.
Law enforcement’s use of monetary incentives in exchange for information or services from confidential informants has sparked public scrutiny. For example, media outlets have drawn attention to the large sums that the U.S. Drug Enforcement Agency (DEA) has paid informants, including paying: “[a]n airline employee over $600,000 in less than four years,” “[a] parcel worker more than $1 million over five years,” and “[o]ne source $30 million over a 30-year period.” Joe Davidson, Want to Make a Million? Become a DEA Informant, Wash. Post (Sept. 30, 2016). In a 2016 audit of the DEA’s confidential-source program, the U.S. Department of Justice found that over a five-year period, the DEA paid approximately $237 million for information or services to a number of its over 18,000 active confidential sources. U.S. Dep’t of Just., Off. Inspector Gen., Audit of the Drug Enforcement Administration’s Management and Oversight of its Confidential Source Program i (2016). At the state level, use of compensated informants also can be quite common. State and local prosecutors rely on numerous informants in the same ways that their federal counterparts do. See e.g., Sarah Stillman, The Throwaways, New Yorker (Aug. 27, 2012), https://www.newyorker.com/magazine/2012/09/03/the-throwaways. They also pay for information. For example, “In the last six years, the [New York] Police Department and programs like Crime Stoppers have paid at least $18 million for information that might assist in criminal investigations, according to police statistics. A vast majority of that money, $16.5 million, went to confidential informants.” Erin Tennant, Money Remains Crime-Fighting Tool for New York Police, N.Y. Times (June 19, 2014), https://www.nytimes.com/2014/06/20/nyregion/money-remains-crime-fighting-tool-for-new-york-police.html. The Crime Stoppers program provides “rewards up to $2,500 for anonymous information provided to [their hotline] that leads to the arrest and indictment of a violent felon.” Crime Stoppers, NYPD, https://www1.nyc.gov/site/nypd/services/see-say-something/crimestoppers.page (last visited Feb. 13, 2020) (noting the program is a “public/
private partnership between the NYPD and the New York City Police Foundation.”). These rewards can incentivize faulty information. For example, “[i]n Cleveland, Ohio alone, the U.S. Postal Service spent over $250,000 in a year or so attempting to “sting” drug dealers in the Service. It later developed that the five informants used by the Service, all with criminal records, framed over 60 innocent people (many of whom were prosecuted) by claiming that tapes of drug-buy conversations, which had actually been concocted by friends, were recordings of the framed individuals.” Christopher Slobogin, Criminal Procedure: Regulation of Police Investigation: Legal, Historical, Empirical, And Comparative Materials 134 (4th ed. 2007).
Agencies should adopt policies that regulate the provision of monetary compensation to informants to ensure against unwarranted, undocumented, or even corrupt payments. Systems that permit automatic compensation can create troubling incentives and raise serious reliability concerns. Indeed, not only is “payment of informants involved in major drug busts, at the federal level and by some states . . . , both significant and typical,” but bounty systems are common. Christopher Slobogin, Criminal Procedure: Regulation of Police Investigation: Legal, Historical, Empirical, And Comparative Materials 134 (4th ed. 2007). Under such systems, “[i]nformants often receive 25% of all money and assets seized as a result of their information. Although some agencies have a cap of $250,000 per case, that cap can be avoided by treating a seizure as more than one case, or ‘giving’ the seizure to local authorities, who have no cap.” Id.
Some informants are incentivized chiefly by expected leniency in their own criminal cases, including forbearance from arrest or prosecution, as well as lesser penalties following prosecution. Such leniency also raises reliability concerns. This can be especially pressing regarding the use of jailhouse informants. See Stephen S. Trott, Words of Warning for Prosecutors Using Criminals as Witnesses, 47 Hastings L.J. 1381, 1394 (1996) (“The most dangerous informer of all is the jailhouse snitch who claims another prisoner has confessed to him. The snitch now stands ready to testify in return for some consideration in his own case. Sometimes these snitches tell the truth, but more often they invent testimony and stray details out of the air.”). In one report, the Innocence Project explained that the use of jailhouse-informant-testimony “is one of the leading contributing factors of wrongful convictions nationally, playing a role in nearly one in five of the 367 DNA-based exoneration cases.” Informing Injustice: The Disturbing Use of Jailhouse Informants, Innocence Project, https://www.innocenceproject.org/informing-injustice (last visited Feb. 11, 2020).
Thus, jailhouse informants may have “a strong incentive to lie,” which in turn creates a significant problem as criminal defendants may not be “given key information related to the credibility of the jailhouse informants who testified against them[,] including the benefits they received, previous cases in which they acted as jailhouse informants, and their criminal history.” Innocence Project, supra. For example, “Martin Reeves spent 21 years in prison after he and his co-defendant Ronald Kitchen were wrongfully convicted in 1991 of the murder of two adults and three children.” Id. Reeves and Kitchen “became suspects after a jailhouse informant . . . contacted a Chicago Police officer and claimed Kitchen had admitted to committing the crime with Reeves during a phone call Williams made to him from jail.” Id. However, phone records demonstrated that “no such calls had been made on the dates Williams claimed.” Id. The Innocence Project advocates for the following reforms in the arena of jailhouse informant testimony: “[p]rompt and complete disclosure of jailhouse witness evidence,” “[t]racking the use of jailhouse witness testimony,” “[r]equiring judges to hold pre-trial reliability hearings to assess whether a jailhouse witness’s testimony is admissible,” and “[p]roviding instructions that jurors should consider benefits offered to jailhouse witnesses and other reliability factors when assessing their statements.” Id.
Any compensation provided to informants should be linked to the public-safety value and reliability of the information they provide, under careful rules that set out when and what types of compensation are appropriate. The National Association of Criminal Defense Lawyers (NACDL), for its part, believes that “[t]he government should not sponsor testimony from paid informants,” but that if it does, it “should be rare and the payments well documented and fully disclosed.” Joe Davidson, Want To Make a Million? Become a DEA Informant., Wash. Post (Sept. 30, 2016, 7:00 AM), https://www.washingtonpost.com/news/powerpost/wp/2016/09/30/want-to-make-a-million-become-a-dea-informant (statement of Barry J. Pollack, President of the NACDL).
Some agencies have set up policies regarding benefits offered to informants. U.S. Department of Justice guidelines provide that “[m]onies that the FBI pays to a Confidential Human Source in the form of fees and rewards shall be commensurate with the value, as determined by the FBI, of the information or assistance the Source provided to the FBI.” U.S. Dep’t of Just., The Attorney General’s Guidelines Regarding the Use of FBI Confidential Human Sources 28 (2002) (Attorney General Guidelines). Confidential sources may be reimbursed for any “actual expenses incurred.” Id. However, the Attorney General Guidelines prohibit the use of contingent payments. Id. The Attorney General Guidelines also provide that “payments to a confidential source that exceed an aggregate of $100,000 within a one-year period shall be made only with the authorization of a designated senior headquarters official,” and with certain other approvals if the payments exceed $200,000. U.S. Dep’t of Just., Off. Inspector Gen., Audit Division, The Drug Enforcement Administration’s Payments to Confidential Sources: Executive Summary 6 (2005). In its Department Manual, the Los Angeles Police Department (LAPD) states that “[a]n informant’s motivation should be carefully evaluated in determining the extent upon which the information will be relied.” L.A. Police Dep’t, L.A. Police Department Manual: Policy § 544.10, available at http://www.lapdonline.org/lapd_manual/volume_1.htm#544. Further, immunity from prosecution only may be granted to informants by a judge—not anyone within the LAPD. Id.at § 544.20. The LAPD requires that officers “keep their supervisors informed of their relations and activities involving informants.” Id.at § 544.30. Such policies help to accomplish the goals of this Section.