by Benjamin Tschirhart

The U.S. Constitution, in its idealistic fashion, guarantees citizens that they “shall not be deprived of life, liberty or property without due process of law.” During the intervening centuries, the fine brush of precedent has filled in those broad, optimistic strokes.

But even a cursory examination will show that not every point of the resulting picture agrees with the noble image envisioned by our founders. Prevailing cultural winds constantly reshape acceptable boundaries in the judicial process. Only certain aspects tend to find more stable configurations which persist over time.

Our adversarial justice system is one area of persistence. It aspires to impartiality, a neutral ideal in which an unbiased fact-finder considers evidence presented by advocates for plaintiff and defendant. Though superior in many ways to the ancient inquisitorial court, where even the pretext of neutrality was absent, our system struggles with what’s known as Blackstone’s Ratio, quoting the 18th-century English barrister who said “it is better that ten guilty persons escape than that one innocent suffer.”

Still, when the checks and balances built into our system function as intended, an accused person has at least a hope of receiving a fair trial. It is the mandate of the defense counsel to act in the best interest of his or her client. The prosecuting attorney is assigned an adversarial role, but he or she ultimately is supposed to pursue the truth while erring on the side of caution.

Unfortunately, this principle is easily forgotten when a prosecuting attorney holds success in higher regard than truth. The U.S. today, driven by fear of crime and criminals, promotes safety through incarceration. According to the Pew Research Foundation, the U.S. locks up more of its population — 639 of every 100,000 people — than any other country on Earth. There are currently more than two million prisoners behind bars in this country. This tragic social development has seen the prosecutor rise to a place of preeminence in the courtroom, while harsh sentencing conventions –— including mandatory minimums and “three strikes” laws — bind judges’ hands. When it comes to sentencing, in many ways, prosecutors have more power than judges under our current laws. So over the past several decades, prosecutors have become colloquially known as “kings of the courtroom.”

Brady, Massiah and
Absolute Immunity

The due process clause of the Fourteenth Amendment attempts to constrain prosecutorial power with several requirements. One of these, known as “the Brady rule,” requires prosecutors to disclose to the defense any evidence which is “material either to guilt or to punishment” because of the “significant advantage the state has over an individual defendant in regards to gathering information…” See: Gonzalez v. Wong, 667 F.3d 965 (9th Cir. 2011), citing Brady v. Maryland, 373 U.S. 83 (1963).

The Supreme Court followed up the Brady decision with the “Massiah rule,” forbidding prosecution or law enforcement from eliciting incriminating statements or confessions from a defendant who has been charged with a crime and has retained counsel if that counsel is not present. See: Massiah v. United States, 377 U.S. 201 (1964).

Together, these rules are supposed to ensure that a defendant benefits from any information that might be considered exculpatory, including evidence bearing on the credibility of a witness. For example, if a witness expects to receive benefits for his cooperation or is otherwise potentially incentivized to lie, or if some sort of agreement exists between an informant and the prosecution, this must be disclosed to a jury whether or not the defense requests it.

In 1976, out of concern that fear of lawsuits would hamper prosecutors in their effectiveness, the Supreme Court granted them near-total immunity from lawsuits for any actions taken within the scope of their work. Under their “absolute immunity,” government prosecutors may knowingly prosecute innocent people, withhold evidence, and generally pursue convictions at any cost, so long as they do not violate “clearly established constitutional rights” while doing so. See: Imbler v. Pachtman, 424 U.S. 409 (1976).

Because the “clearly established” clause has been interpreted so narrowly, this lonely caveat rears its head only occasionally to give hope to the many tens of thousands of desperate Americans in shackles. Typically, this happens after a prosecutorial gambit has grown so egregious that some person of social standing is caught in the net, or when an abuse grows so outrageous that it comes to the attention of a rare public figure whose sense of justice has not yet been snuffed out by their cynical work. One such case was the investigation begun by current Vice-Pres. Kamala Harris (D) when she was serving as Attorney General of California.

Alarm Bells: The Seal Beach Killer

On October 12, 2011, in Seal Beach, California, Scott Dekraai walked into the beauty salon where his wife worked and opened fire. After killing her and seven others, he was found a few blocks away and confessed to law enforcement. He was taken to the Orange County Jail, where the sheriff’s department (OCSD) activated its information-gathering mechanism: a network of custodial informants (CIs) whose existence was an open secret. Open, in the sense that certain informants were known to prosecutors, testifying in court and working on multiple cases. Secret, because when asked later, none of these government lawyers could remember working with CIs despite having many face-to-face encounters over several years. In this case, Fernando Perez was insinuated into Dekraai’s confidence beginning on his first day in the Orange County jail.

While Dekraai’s guilt was never in question, his statements to Perez, recorded by OCSD in his wired cell, were used to establish his state of mind and facilitate U.S. Attorney Tony Rackauckas in his quest for the death penalty for Dekraai. Perez was characterized in court as “a passive listener who had no stake in Dekraai’s case, asking Dekraai no questions and seeking nothing in exchange.” But when Dekraai’s attorney filed a motion seeking to discover whether Perez was acting as “an agent of law enforcement,” he received “thousands of pages of discovery material that made clear that … he had been working as a custodial informant within the Orange County Jail for over a year in exchange for benefits from law enforcement agencies.”

After the agreement with Perez came to light, OCSD tried to run damage control, claiming that the intentional placement of informants in the jail was “seldom, if ever, documented by any member of law enforcement” and that prosecutors were ignorant of any such movements. This then proved patently false. After Dekraai’s attorney, jointly with the county District Attorney (OCDA), requested a supplemental hearing in 2015, they learned that OCSD possessed voluminous information regarding the placement of CIs within the jail and the purposes for which they were placed.

Upon reviewing this information, the Orange County Superior Court decided that the deputies for the Special Handling Unit who testified to the contrary had “either intentionally lied or willfully withheld material evidence from this court during the course of their various testimonies.” As a result, in August 2017 — three years after Dekraai pleaded guilty to the killings — Judge Thomas Goethals said that he was ineligible for the death penalty and sentenced him to life in prison. [See: PLN, Oct. 2020, p.50.]

Federal Investigation

Federal prosecutors began their investigation into the matter in 2016, the same year that Dekraai’s prosecution was handed over to then-Attorney General Harris. She appealed that hand-off, and lost. She also appeared to slow-walk a separate state investigation into the abuse of snitches, saying that county investigators should be relied upon to complete that task.

So the investigation into the use of CIs by OCSD and OCDA was opened by the Civil Rights Division of the U.S. Department of Justice (DOJ), pursuant to the Violent Crime Control and Law Enforcement Act of 1994, 34 U.S.C. 12601. This section forbids law enforcement agencies from “engaging in a pattern or practice of conduct that deprives individuals of their rights under the Constitution or laws of the United States.” The goal of the investigation was to decide whether the use of CIs had violated the Sixth Amendment rights of individuals who had been charged with crimes.

Most of the cases examined were tried by the gang enforcement team, the homicide and TARGET (Tri-Area Gang Enforcement Team) units. The DOJ investigatory team spent 22 days at the Orange County Jail, speaking to about 50 personnel, assisted by three subject matter experts: two former prosecutors and one expert in “custodial classification.” The team then spent another 45 days with OCDA interviewing five senior prosecutors, 17 junior prosecutors, employees, and District Attorney David Spitzer, as well as members of his administration.

The investigation’s conclusions were published in a report released by DOJ on October 13, 2022. While Orange County’s use of CIs dates back to at least the 1990s, the report revealed that OCSD and OCDA had worked together from 2007 to 2016 to run a “well-established program” which used CIs to obtain “incriminating statements from defendants in homicide and gang-related prosecutions.” In fact, the sheriff’s department assigned CIs to its jail’s Special Handling Unit in order to facilitate their placement with defendants with whom they were intended to cultivate relationships. The investigation reported that “strategies that the Special Handling Unit and their informants collectively pursued through the guise of following official jail procedures contributed to the pattern or practice of Sixth Amendment violations that [DOJ] found.”

Evidence also showed that prosecutors from OCDA were aware of these facts. For example, one prosecutor dropped all charges in October 2014 against a defendant who provided assistance in another case. However, the prosecutor “had represented to the court that there were no informants in the case, though she had been present when two of the informants testified against the defendant in a grand jury proceeding,” investigators reported. When interviewed along with other staffers, however, “they generally reported that they were unaware … that informants had elicited statements from charged defendants at the direction of law enforcement and that informants had received benefits in exchange for their assistance.”

State of Play: CI Status Quo

Sadly, this is not an especially egregious example of abusing snitches in service to prosecutorial goals. The state of Florida is notorious for having one of the highest rates of wrongful conviction in the U.S. In 2012, the Florida Supreme Court established a 25-member panel (the Innocence Commission) to examine cases of wrongful conviction and give recommendations on how they may be prevented.

In its report, the Innocence Commission identified unreliable jailhouse snitch testimony as one of the primary causes of false convictions, contributing to 50% of wrongful convictions in murder cases — like that of Robert DuBoise, who was convicted of the 1983 rape and murder of 19-year-old Barbara Grams. Although fingerprint and hair analysis excluded him as a suspect, Tampa police insisted that DuBoise was guilty, relying on two jailhouse snitches who received promises of leniency in exchange for their testimony against DuBoise. The innocent man was imprisoned, only to be exonerated and released in 2020 when evidence establishing his innocence was discovered. By then he had spent most of his adult life in a cell, for which he is now suing for damages from the City of Tampa. Because his case is so egregious, HRDC, publisher of PLN, is providing DuBoise representation. [See: PLN, Nov. 2021, p.10.]

In 2006, an admonishment to “stop snitching” appeared on a clothing line publicized by celebrities such as NBA star Carmelo Anthony and rapper Lil’ Kim. [See: PLN, Feb. 2006, p.28.] At first appearance, the phrase seemed pro-criminal. Closer examination, however, revealed a more nuanced truth. Simply put, overreliance on CIs has extremely deleterious effects on law enforcement, the administration of justice, and on vulnerable communities who are the most in need of protection from the police.

When criminals are incentivized to give up information, the first to do so are not the low-level players, who often have no grasp of the “big picture.” Instead it is their leaders who are best positioned to “rat out” the subordinates. As a result, many small-time offenders are sold out by their bosses, who maintain their own positions and continue committing crimes with impunity. Using big fish to catch little fish in this way turns the intended process on its head, working the way down the food chain of a criminal enterprise to its smallest and least important parts. As Wall Street Journal reporter Laurie Cohen noted, “the procedure for deciding who gets [rewarded for cooperation] is often haphazard and tilted toward higher-ranking veteran criminals who can tell prosecutors what they want to know.”

Sadly, the U.S. justice system has doubled down on this ineffective and counterproductive methodology. It didn’t have to be this way; on March 28, 2007, the U.S. Court of Appeals for the Ninth Circuit ruled that Thomas Lee Goldstein, wrongly imprisoned for 24 years on a CI’s unreliable testimony, could sue prosecutors for failing to prevent his false conviction. But the U.S. Supreme Court unanimously reversed that ruling on January 26, 2009, granting defendants absolute immunity. [See: PLN, Mar. 2009, p.26.]

Impact on Law Enforcement

Wherever a morally ambiguous strategy is adopted by authorities, the effects are always harmful, sometimes outrageously so. Any erosion of civil rights leads to a cascade of negative effects. Goal posts shift. Once-unthinkable intrusions of civil rights become normalized and, eventually, commonplace. Inevitably, there are additional knock-off effects as dynamic and emergent social systems shift to find new equilibrium. In our current paradigm, two phenomena have conspired to create an enormous dependence on snitches for police work: plea bargaining and immunity from prosecution — called absolute immunity for prosecutors and qualified immunity for police.

By using plea bargains to leverage defendants into providing information on each other, law enforcement and prosecutors rely more and more heavily on the very criminals that they are (at least in theory) pursuing and investigating in order to build cases. This is problematic because it creates an unhealthy symbiosis between police and their quarry. Good detective work is more difficult and time-consuming than simply having intelligence delivered like pizza by informants.

Former DEA agent Celerino Castillo summed up this bizarre scenario in which “informers are running today’s drug investigations, not the agents. … Agents have become so dependent on informers that the agents are at their mercy.”

The arrangement also puts law enforcement and prosecutors in moral jeopardy; Professor Ellen Yaroshefsky of Cardozo School of Law wrote in a 1999 study that some prosecutors can “fall in love with their rats.” It goes without saying that this dynamic creates a dysfunctional level of intimacy and trust between law enforcement and prosecutors, who are incentivized to find guilt, and an informant who is incentivized to tell them whatever they want to hear. We have already seen how frequently this dynamic contributes to false convictions.

And so, this overreliance on CIs is indisputably harmful — not just for those who are falsely convicted as a result, and not just for the larger society left with a dangerous person in its midst while under the false belief that the criminal has been apprehended. In addition, it is harmful for law enforcement, who find themselves more often pursuing fake leads within an increasingly hostile populace.

Social media abounds with frustrated law enforcement officers asking why they are greeted with hostility by the population they are meant to protect. The answers are there for those who will listen. Cases like that of Chad Heins — who was convicted of murder in Florida based solely on the testimony of two jailhouse informants and served 11 years before DNA evidence exonerated him in 2007 — cast a pall of doubt on the reliability and trustworthiness of police work. [See: PLN, Apr. 2013, p.50.]

As more of these cases come to light, the growing number of Conviction Integrity Units (CIUs) in prosecutors’ offices serves as a clear indicator that mistrust of police and prosecutors has rightfully spread in our society. In a criminal justice culture that values truth and the rule of law, a CIU would be redundant; a cop and a prosecutor would not conspire together to frame, convict and imprison (or execute) a defendant they both knew to be innocent. That it frequently happens in our country should explain to law enforcement why they are not trusted in the communities they purport to protect.

“Snitch Jackets”

So far, most of our focus has been on the actors at work before sentencing: police, prosecutors and CIs. After a sentence has been handed down, the gavel drops, and a defendant is remanded to the custody of a state Department of Corrections or the Federal Bureau of Prisons. The government workers go home, their names and faces already fading from public view, to be replaced with new names and faces the following day. For them, the person in chains has ceased to exist until, perhaps, he returns on appeal. But his life has not stopped. For those defendants who cooperate with the police or federal agents in order to earn leniency in their sentences, they now face months or years in prison marked as a CI — or as more commonly known, a “rat.”

In prison, the accusation that you informed on another prisoner is called a “snitch jacket.” Putting one on leaves a prisoner to face reprisals ranging from ostracism to violence. If he is assaulted, beaten, or killed, and then fortunate enough to be awarded damages by the court, this cost is borne by the taxpayers.

In 2002, James Saylor was assaulted by his cellmate after he was “snitch jacketed” — accused of “ratting out” a fellow prisoner planning to escape. Because prison officials were aware of the risk this created for Saylor but failed to protect him from attack, the federal court in Nebraska awarded him $267,000 in damages in 2014. [See: PLN, June 2015, p.36.]

Sometimes, guards themselves will do the “snitch jacketing,” leaving a prisoner in grave danger. Craig Northington was in Denver County Jail when guards told his fellow detainees that he was a CI. This led to an assault on Northington, for which he was awarded almost $100,000 in damages, costs and fees in 1996. [See: PLN, Oct. 1997, p.17.]

But it gets even worse; in 2021, the Fifth Circuit Court of Appeals reversed the dismissal of a lawsuit by a CI attacked by another state prisoner in Texas. The victim, Joaquin Alvarez, was forewarned when his alleged assailant threatened him. That prompted Alvarez to request a transfer to another cell block. But the assistant warden denied his request and allegedly told Alvarez “We don’t protect snitches in Hughes Unit.” [See: PLN, Sep. 2021, p.54.]

When it comes to government use and misuse of informants, the possibilities — and potential for harm — are endless. In 1995, a group of prisoners in California’s Pelican Bay State Prison brought suit against the prison and its guards and officials. Among their complaints was a policy of confining suspected gang members in the Security Housing Unit (SHU) until they either “parole, snitch or die.” In official language, the administrative procedure whereby they could be released from SHU was called ‘debriefing.’ At that point, to get out of SHU, they were required to admit being a gang member, identify other gang members, and reveal everything known about the gang’s activities and organizational structure.

By doing this, prison officials were fully aware that they exposed these prisoners to “serious risk of being attacked or even killed by other inmates,” the lawsuit claimed. This policy created a labyrinth of perverse incentives; some prisoners who went through debriefing requested to remain in the “hellish SHU conditions” out of fear for their safety if they were released. Other prisoners who were not gang members responded to the powerful incentive to fabricate information and accusations simply to escape SHU, “thereby continuing the chain of false accusations resulting in the inaccurate classification of other prisoners as gang affiliates and their subsequent imprisonment in the SHU.” [See: PLN, Aug. 1995, p.3.]

Alternatives for Police
and Prosecutors

Law enforcement officers and prosecuting attorneys determine whether and how to use CIs. So they are the ones who must act to stop the abuse. In 2013, the Florida Innocence Commission identified “[u]nreliable jailhouse snitch testimony” as one of the “five primary factors that contribute to wrongful convictions,” noting that jailhouse informants were a “contributing factor in 15% of wrongful convictions” including half of those for murder. The Commission recommended adopting a system like one in Illinois that requires the examination of an informant’s credibility by a judge (although in Illinois this currently applies only in death penalty cases). The Innocence Commission also recommended additional jury instructions regarding “informant witnesses” and urging caution when considering the testimony of “witnesses who hope to gain more favorable treatment in their own cases.” [See: PLN, Apr. 2013, p.50.]

The Brady rule already requires a prosecutor to give information about the character of an informant to the defense. So the casual contempt displayed for that rule and others by prosecutors across the nation will likely not be remedied by the sort of non-binding recommendation that the Innocence Commission issued. To stop this flagrant violation of constitutional rights requires a sanction of greater severity.

End Qualified Immunity and Absolute Immunity

“Capital cases are so political that winning becomes far more important for the average [district attorney],” writes attorney Ariba Ahmad in The Next Step in Civil Rights: Abolish Absolute Prosecutorial Immunity so Prosecutors Cannot Use Their Power to Violate Others’ Constitutional Rights. “We’re not talking about being competitive. We’re talking about winning at all costs. Deliberately deceiving the court. Withholding favorable evidence. Arguing things they know aren’t true. Harassing defense witnesses. Concealing deals they make with their witnesses. Winning means getting a death sentence. They are out to win.”

As Ahmad concludes, “This combination of invisibility, incentives, and access creates an environment ripe for misconduct.” Since prosecutors “have no reason to stop,” it is the legislature that “must step up and give them a reason to stop.”

Under the doctrine of qualified immunity, law enforcement officers are exempt from prosecution for virtually any abuse preceding or during an arrest, as long as they can claim a sincere belief that a defendant was breaking a law. In fact, the law in question need not even exist. See: Heien v. North Carolina, 574 U.S. 54 (2014).

Prosecutors enjoy similar protection under the parallel doctrine of absolute immunity. “[It is] better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation,” the Supreme Court said in Imbler. Tellingly, only the Seventh Circuit Court of Appeals has shown any will to reign in this broad right, holding that fabricating evidence and introducing it at trial is not protected activity. See: Fields v. Wharrie, 740 F.3d 1107 (7th Cir. 2014). [See also: PLN, Aug. 25, 2016, online.]

 When a prosecutor acts in such an egregious way as to evoke condemnation or censure, he or she still almost never faces serious consequences. Until this changes, widespread reform will be difficult, if not impossible.

Drug War Armistice

Perhaps no public policy in the U.S. has failed so spectacularly as prohibition. Alcohol prohibition gave organized crime its first foothold in the U.S. After the dismal failure of that social experiment, the government doubled down with full scale psychoactive drug prohibition. We have been packing prisons with perpetrators of victimless crimes ever since. Countries with policies that decriminalize the use, acquisition, and possession of drugs — such as Portugal and the Netherlands — demonstrate that the harms of drugs are only amplified by their prohibition. Regulation and harm reduction are more socially responsible approaches and would reduce the need for criminal prosecution by almost half. It follows that this would eliminate a great many opportunities for prosecutorial misconduct and misuse of informants.

Restoring Trust?

During the brouhaha over Scott Dekraai’s sentencing, Orange County Assistant Public Defender Scott Sanders criticized the investigation initiated by then-Attorney General Harris. He claimed that contrary to public statements, the investigation was not ongoing for four years but rather finished in only a few months. “It was just striking … You couldn’t read this and say these folks were really trying to get to the bottom of this. … Three deputies committed blatant perjury in a death penalty case. The Harris administration had everything it needed to prosecute for perjury, except for the courage to stand up to law enforcement.” [See: PLN, Oct. 2020, p.50.]

The DOJ’s latest report couldn’t be shelved fast enough for District Attorney Todd Spitzer, who said it “confirms exactly what we already knew.”

“I have made it unequivocally clear that I refuse to accept the ‘win-at-all costs’ mentality” of the prior administration, Spitzer declared.

Sheriff Don Barnes, who was around in 2011 when Perez helped Dekraai incriminate himself, said his office has labored for the six years the investigation lasted “to identify errors and protect the constitutional rights of all persons housed in the Orange County Jails.” He expressed confidence that DOJ “will find our current practices have addressed many of their recommendations.”

In its report, DOJ said its goal was to restore “trust in Orange County law enforcement,” something that will require “recognition and remediation of the harms caused by the law enforcement practices described in this report.” See: Investigation of the Orange County District Attorney’s Office and the Orange County Sheriff’s Department (DOJ Civil Rights Div. 2022)

And yet, when faced with the opportunity to show the public that law enforcement and prosecutors are not above the law and that they can be held accountable for violating constitutional rights, DOJ took no action beyond non-binding recommendations. There were no indictments, no charges filed, no convictions. The agency’s Civil Rights Department wants to restore trust in law enforcement without requiring law enforcement to change practices in any meaningful way. But until law enforcement and prosecutors are held accountable for violating the law and the constitutional rights of U.S. citizens, they cannot and should not be trusted.

Writing in the Hofstra Law Review in 2021, Samantha Caspar and Artem Joukov make a convincing Case for Abolishing Absolute Prosecutorial Immunity on Equal Protection Grounds. It is well established and indisputable that in the arena of drug crimes, law enforcement chooses to prosecute non-white minorities at a significantly higher rate. This is an established trend despite the fact that multiple studies show that whites and Blacks use and sell drugs at approximately the same rate. It follows that as a percentage of total convictions, more Blacks and other minorities are the victims of wrongful convictions as a direct result of this exercise of discretion. The authors make a powerful case for eliminating absolute prosecutorial immunity as the best way to redeem our criminal justice system. The misuse of informants and snitches is just one symptom of a much deeper problem. As long as prosecutors are rewarded for convictions at any cost — and as long as the drug war requires police to investigate victimless, unreported “crimes” — we cannot as a nation expect any meaningful change. Law enforcement will continue to use CIs to make cases that advance their careers, and prosecutors will give them cover as they destroy the lives of some innocent men and women, sending them to prison or even death.

As Ariba Ahmad notes, “Despite the devastation of incarceration, prosecutorial misconduct cases typically end the same way police-officer misconduct cases do: with no accountability, and no justice.” 

Additional sources: Los Angeles Times, Pew Research, Mass Incarceration: The Whole Pie (Prison Policy Initiative 2022); Race and Wrongful Convictions in the U.S. (National Registry of Exonerations 2022); Slate Magazine, Wall Street Journal

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