A Terroristic Divorce

Any of the persons I believe to be Confidential Informants who were directed to intrude into my life would have legitimate fears of all of the following situations. Confidential informants are treated as disposable human beings. I believe that they have taken weak people with little self respect and inserted them into my life. When those people see that what they are doing to me is wrong – at so many levels – they become even more fearful. They see that I am a good person suffering through tremendous injustice. They see that the victim of injustice will only be further victimized by injustices.

IF THE CONFIDENTIAL INFORMANT PROGRAM HAS THIS MANY ISSUES… WHAT CONTROLS ARE ON THE PRIVATE INVESTIGATORS USED BY THE DRUG TASK FORCES?

These examples from the New Jersey /ACLU Report explain the varied situations.

Manufacturing and Overlooking Criminal Conduct — Some law enforcement officers overlook the criminal conduct of CIs under their supervision. In addition, police officers have allowed CIs to participate in crime with other civilians and then arrested only the non-informant. In cases where a CI is encouraged to induce a civilian to engage in criminal activity, those actions might validly be subject to claims of entrapment.

Financial Abuse — Interviews revealed that some police agents use personal money or money confiscated from criminal suspects to fund CIs despite written policies prohibiting these practices. Engaging in such practices allows individual officers to recruit and deploy CIs without their departments’ knowledge and outside the appropriate oversight — behavior that is also expressly prohibited by existing written policies.

Physical and Verbal Abuse — We learned from the community interviews that law enforcement officers sometimes assault or threaten civilians in order to coerce them or their friends and relatives to serve as CIs. Based on information provided by community members, who admitted to acting as CIs, “cooperation” achieved through such means has led individuals to fabricate information. This practice, while seemingly rare, is criminal. Reports of verbal abuse were more prevalent than reports of physical abuse. The reported verbal abuse included derogatory name calling and threats of civil action (such as child removal) if civilians refused to act as informants.

“Burning” the CI — Police officials fail to sufficiently safeguard information about the identities and locations of CIs or about their relationships with the police, thereby exposing civilians to risk of harm. At times, CIs perceive the “burning” as intentional punishment for failing to cooperate as expected; other times it appears to be inadvertent — police or prosecutors carelessly make verbal statements or gestures in the presence of others (outside the police-informant relationship) from which an inference can be made that the civilian is “working for” the police.

Use of Unreliable Informants — Police survey responses and community interviews indicate that police sometimes take CIs at their word without first carefully and independently corroborating the veracity of their statements before attempting to make an arrest. Incentives offered to CIs, including leniency in their own criminal cases, increase the risk that CIs will provide unreliable information. The prevalent and repeated use of drug-addicted civilians as CIs increases the risk that the information they provide may be unreliable.

Misuse of Juvenile Informants — There is currently no absolute ban on using children as CIs. Current state, county, and municipal policies include age restrictions and requirements such as parental or prosecutorial consent prior to using juveniles as CIs, but the policies are not uniform across the three levels of government. This means police may use underage persons as CIs, in some cases without consulting the juvenile’s attorney or legal representatives. Juvenile CIs by virtue of their age are even more vulnerable than the general population, when dealing with law enforcement and the criminal justice system.

“Legal” Coercion — Police “squeeze” criminal defendants by threatening them with additional charges or counts related to their own cases if they do not “cooperate” by becoming CIs.

Using Big Fish to Catch Little Fish — Police or prosecutors occasionally give upper-level drug dealers, traffickers, and manufacturers more lenient treatment because they can “give up” numerous less-serious offenders in the ranks below them. This means that the more culpable leaders of drug networks — the “kingpins” — may get less severe punishment than underlings who play a lesser role in the drug trafficking operation.

Although procedural changes were made in 2004 to limit such situations in New Jersey, some public defenders interviewed during this study reported that this situation still occurs, though less frequently.

Failure to Protect the Safety of Lower-Level Informants — The practice of allowing, encouraging, or coercing low-level offenders to actively participate in the investigation and apprehension of more serious or higher-level offenders exposes low-level offenders, their families, and their friends to the risk of serious physical harm if their identities become known. As reported in the public defender interviews, mere motor vehicle traffic violators were used in some cases to infiltrate criminal enterprises run by interstate drug traffickers.

Failure to Put Agreements in Writing — State guidelines require that cooperation agreements between the state and a defendant facing sentencing for a drug crime be in writing, pursuant to the Attorney General mandates that bind county prosecutors (the “Brimage Guidelines”) (See Appendix B).23 There is substantial evidence that, with the exception of a few counties, this requirement is often not followed. In addition, the Brimage requirements do not apply in a variety of other contexts where the state seeks and obtains cooperation from witnesses. There is little evidence that written agreements are used in these other contexts, and it appears that New Jersey law enforcement officials consistently fail to comply with the dictates of Brimage when written cooperation agreements are required. In all contexts where CIs are used, the absence of a written agreement pits a CI’s word against that of a law enforcement agency, leading to disputes about what promises were made in return for cooperation, as well as the nature and duration of the expected cooperation.

Circumventing Search Warrant Requirements — In urban areas, according to community respondents, CIs are sometimes used in place of search warrants to gain access to dwellings that the police believe contain evidence of drug sales. Rather than apply for a search warrant, the police send an informant to make a purchase at a residence they suspect of drug involvement. When an occupant opens the door to conduct a hand-to-hand transaction, the police push their way into the residence and conduct a search of the entire premises, not just the area within the arrestee’s immediate reach.

Anonymous Accusers — Several of the public defenders interviewed stated that they sometimes questioned the veracity of a CI’s claim against a client or even whether a CI actually was involved in a particular investigation. Under the general legal rule, applicable in both federal and state courts, CIs with information that relates directly to a defendant’s guilt or innocence cannot remain anonymous and may be called to testify.25 In practice, the public defenders and private attorneys reported that they rarely succeed in compelling the disclosure of an alleged CI’s identity.26 In the rare case, where such a motion is successful, prosecutors elect to dismiss charges rather than reveal information about the informant.

Street-Level Recruitment — When police officers are allowed to recruit a CI on the street in lieu of arresting him or her, it increases their use of CIs and precludes the oversight mandated by written policies. The unregulated recruitment of individuals on the street and their participation in the act of informing undermine community cohesion and faith in fair law enforcement.