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Sunday, August 4, 2013

Standard Practice: Feds Allow Informants To Commit Crimes

Prosecutors at all levels (federal or state) use the testimony of informants to investigate and solve crimes and gain convictions at trial.  There is a downside: the informants are most often criminals themselves, and have a character that lends itself to continuing to commit the same or new crimes. But here is a new twist: the federal government is now admitting that it has allowed -- permitted -- many of its informants to commit crimes, and nearly 6,000 in one recent single year.  (See this heavily redacted January 2012 memo listing the total of Tier I and Tier II crimes as 5,658.)

This is NOT necessarily big news.  The federal government for years has permitted informants to engage in various types of what it calls "otherwise illegal activity." The federal government has procedures governing its agents' (sometimes called "handlers") use of informants, and some of this information is even public. This Bush-era manual (signed by former Attorney General Alberto Gonzales in December 2006) is worth a read (specifically pages 5-7, but the entire manual is worth reading).

The federal government -- and the states -- has long if not always had to rely on inside information about how criminal enterprises work. There often is little other way to get this information.  But there are problems.  The credibility of the informants is suspect to begin with, and ongoing criminal activity or even new crimes just makes that informant's testimony that much more suspect.  Remember, the informant is almost always hoping to get a looming prison term reduced or even eliminated entirely.  This is a powerful incentive to say whatever is necessary to get the government to recommend to the sentencing judge a lenient sentence (less time) or even a non-custodial sentence (such as probation or house arrest). (In the federal system, the local U.S. Attorney's Office will customarily issue something called a 5K1.1 letter, in reference to the section of the federal sentencing guidelines that permits a sentencing judge to make a downward departure from the sentence range for the applicable total number of culpability "points" a defendant is determined to have. The government, of course, will be most inclined to make this recommendation if its informant has been most helpful or productive -- and such help or production is best quantified in the number of defendants the informant has fingered, implicated and help result in guilty pleas or convictions.

Clearly, you can see there is a powerful systemic reason to lie.

Perhaps if you want a solution, you have to look towards the staffing of cases and investigations. Perhaps the easiest solution is to increase the manpower of law enforcement agencies, and increase the pay as well so you attract and retain the best.  In a bloated government bureaucracy, perhaps there is no better use of taxpayer dollars and deployment of able human capital than to investigate ongoing crimes, especially if the tradeoff is reduced reliance on the questionable if hardly reliable testimony or other reporting of already-admitted criminals.  That may prove to be a bargain!

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