Download the paper from SSRN at the link.
Without informants, policing as we know it would grind to a halt. In the arenas of drug enforcement and the battle against organized crime, the majority of prosecutions hinge on confidential informants, and informants are increasingly central in white collar crime prosecutions and anti-terrorism investigations. Yet society, to put it bluntly, hates informants. The epithets used to describe them – “snitch,” “rat,” “weasel” – suggest the reason: the informant, by assisting the police, is guilty of betrayal. But identifying the reason for society’s disdain raises more questions than it answers. For instance, are all informants disloyal, or are only some? Are there governing principles that explain which informants are deemed to be disloyal? To whom are informants disloyal? What import does informant disloyalty have beyond the social stigma that informants bear? And these questions matter because betrayal, in the words of George Fletcher, is “one of the basic sins of our civilization.” Yet, they have largely escaped the attention of legal scholars.
This Article remedies this oversight first by discussing the role of informants through the lens of the observations that philosophers have made about loyalty and disloyalty. The discussion reveals that loyalty and disloyalty are social constructs of normative expectations arising out of special relationships between individuals and other individuals or groups. And when an individual breaches these normative expectations, she commits disloyalty or betrayal. The Article applies these observations about loyalty and disloyalty to three informant situations. The first is the “typical” case of an accomplice-informant who assists police in apprehending and prosecuting her partners in crime. The second is that of communities with particularized norms against cooperating with the police, as exemplified by the “Stop Snitching” movement that has made significant headway in high-crime communities. The third situation is that of informants in “mainstream” society. The loyalty analysis of these three situations reveals interesting insights into why police have trouble obtaining civilian cooperation in high-crime communities and the limits of civilian identification with police objective in mainstream society. Finally, the Article considers these insights in light of existing scholarship about the relationship between civilian perceptions of police and willingness to cooperate. This consideration leads to a handful of policy proposals to enhance civilian cooperation with law enforcement and ultimately to the recognition that some level of reticence to cooperate with police, particularly in marginalized communities, is both inevitable and desirable.
December 20, 2010
Categorizing the Informant
Michael Rich, Elon University School of Law, has published A Snitch, Not a Hero: Philosophical Lessons of Loyalty and Disloyalty in the World of Criminal Informants, as Elon University Law Legal Studies Research Paper No. 2010-11. Here is the abstract.