10/1/2011

By Nick Jarcho, J.D. Candidate

The arrest on June 22, 2011 of fugitive alleged Boston Crime Boss James “Whitey” Bulger after 16 years on the run was an empty triumph for law enforcement. Bulger, 81, had successfully lived out much of his golden years in comfort (more than $800,000 in cash was found in the Santa Monica home he shared with his longtime companion) and security (the same search turned up more than 20 loaded guns, as well as other weapons).[1]Moreover, during the time that Bulger remained free, the FBI saw a former agent convicted of second-degree murder after a jury found he leaked information to Bulger and Stephen Flemmi, both of whom were his informants, resulting in the death of another associate, John Callahan.[2] The revelations damaged the credibility of the FBI, leading to Congressional hearings and a major revision to the Bureau’s informant-handling standards.[3]

The Bulger case demonstrates the perils of a ubiquitous criminal justice practice: informing, or “snitching.” Snitching, the practice of allowing leniency to some criminals in exchange for information on other criminals, is very common, but its effects on law enforcement are rarely considered. Snitching has a strong place in American cultural representations of crime. It is a staple of every classic or popular crime movie or television show, from “The Godfather” to “The Departed” (elements of which bear a striking resemblance to the Bulger case)—for good reason.

In her recent book, “Snitching: Criminal Informants and the Erosion of American Justice,” Alexandra Natapoff makes a credible case that the current system of informant use itself perpetuates serious problems with criminal justice. Natapoff recognizes the flaws of “unfettered discretion, pervasive informality, secrecy,”[4] but identifies the “the toleration of crime” as the “central compromise and danger of criminal informant use . . . .”[5]

Natapoff notes that in some circumstances, oversight of the police and agents “handling” informants is lacking.[6]  In these situations, “informant practices are left up to individual police and prosecutors to craft on a case-by-case basis.”[7] As in the Bulger case, the discretion of an agent to select an untrustworthy or otherwise unacceptable collaborator may not be reviewed, except through reports written by the handling agent herself. Additionally, police officers and agents may be sensitive to, and may actively resist oversight from prosecutors for cultural reasons.[8]

Natapoff argues that the toleration of crime inherent in the use of informants undermines the rule of law. Informant deals permit participants “to avoid liability, to escape punishment, and even sometimes to continue offending,”[9] as occurred in the Bulger case. A system that rewards informants for what they know will ultimately reward most those who have committed the most crimes, and who are most enmeshed in criminal conspiracies.[10] Natapoff cites the case of John Martorano, who agreed to give evidence against Bulger and Flemmi in 1999 and in the process secured only twelve years in prison, though he pled guilty to twenty murders, in addition to other serious crimes.[11] Moreover, the more investigators rely on informants, the greater lengths officers will go to protect their sources. An informant who can promise an officer a “career case,” or whose information is regularly reliable enough to generate good case statistics, inevitably obtains significant leverage over his handler. The officer will be forced to see his own future career potential as wedded to the informant’s continued ability to continue on a case. This binding of interests, especially when done in private, undermines the integrity of the adversarial system of criminal justice.

However, there are significant benefits to snitching. From a government perspective, the principal appeal of snitching is in its rationality. The government permits criminals to assess and improve their legal liability by turning other, “bigger” criminals, and by allowing criminals to act out of rational self-interest, rather than from coercion, reinforces the appearance of overall justness of the system. While Natapoff rightfully sees coercive elements in the way that informants are “flipped,” including the absence of counsel, and the potential fabrication of the charges used as a pretext for confronting the would-be collaborator, her horror stories of informants desperately fabricating evidence against their neighbors could easily be weeded out by some of her reforms, especially the increased presence of counsel.

More than that, snitching breaks down any perception of moral legitimacy within the criminal groups it targets. By destroying their internal cohesiveness, which may be expressed in the form of “honor” or “family,” it serves to effectively repudiate a morality that competes with the morality of the law. This morality narrative plays out in the last episode of the third season of the HBO series, The Wire. When one of the protagonists, Detective Jimmy McNulty, arrests West Baltimore drug kingpin Avon Barksdale, who he had been chasing for the past three seasons, he makes a point of showing him the line on the warrant that lists the source of information as Stringer Bell, his best friend and second in command, to whose murder Barksdale had acquiesced in the previous episode.[12] The impact of the moral victory stuns all of the detectives who had worked on the case.[13]

Another moralist dynamic of snitching is the anguish that it inflicts upon the double-agent. From punitive standpoint, the imposition of this constant terror, especially for cooperators providing information over the long term, adds another significant punitive element. The unpleasantness of cooperating may in fact ‘make up’ for some of the foregone jail time.

Thirdly, and most significant, is kind of tactical advantage that snitching allows investigators. Criminals’ knowledge that any one of their associates could be a snitch drives them to a heightened level of distrust. The knowledge that all of a criminal’s underworld associates participate in acts that could expose them to pressure to “flip” into informing creates a cycle of jeopardy; the more crimes undertaken with others, the more they are all exposed to criminal risk from each other. Snitching thus is a multiplier on the reach of law enforcement that must be dealt with by high-level criminals.

Perhaps the most prominent recent example of all of these factors at work comes from the first two seasons of HBO’s acclaimed drama, The Sopranos. Mob boss Tony Soprano wrestles with the possibility that his best friend and longtime associate Sal Bonpensiero is rating to the FBI. The lingering question not only causes him grief and stress, but also causes him to change his patterns and shift responsibility to different associates. Bonpensiero, on the other hand, is driven nearly insane with paranoia and angst.[14]

Reconciling these two viewpoints of snitching is not necessarily difficult; Natapoff herself proposes ten reforms to combat abuses, none of which, except perhaps for the idea of “Defense Informants,” is particularly revolutionary; they mainly involve adding procedural oversight and protections on every level of the criminal process.[15] Natapoff herself acknowledges the benefits to police work of informing. Perhaps, then, the Bulger affair is not a lingering reminder of a broken component of the criminal justice system, but a cautionary tale about how prone it is on the whole to the actions of immoral individuals, faced with bureaucratic pressures that favor careerism and “results” ahead of doing justice.