Reviewer:

Gary T. Marx is professor emeritus of sociology, Massachusetts Institute of Technology. He is author of Undercover: Police Surveillance in America (1989) and his monographs in progress include books on new forms of surveillance and social control across borders.

Gary T. Marx, M.I.T.  |  Bio  |   Back to Main Page

It is rare to encounter a book that nurtures the passion for justice while also remaining respectful of standards of scholarship. Law professor Alexandra Natapoff has done that in a splendidly informative and lively book. The topic of criminal informants (which need not be the same as informants reporting on criminals) has never been has so comprehensively, disturbingly and clearly analyzed — not only should criminal justice practitioners and students be required to read it, they should be tested on it.

Among the most significant and least studied aspects of American criminal justice is how the government obtains evidence. Apart from what can be learned from direct observation, searches, forensics or accidents, authorities in a democracy are forever sentenced to making deals, rewards, threats, manipulation, covert surveillance, undercover operations and tips. Negotiation, compromise and voluntary compliance play a much larger role than in more authoritarian societies lacking our expansive notion of procedural rights. Coercion, deception and actions off the books are just beneath the veneer and support the table of our high civic ideals — ironically partly because of them.

Relative to Europe, the American system of criminal informants "is centrally shaped by individual decisions of police and prosecutors, with few external controls and little individual oversight or legislative or public scrutiny" (p. 67). It is hard to imagine a more perfect hurricane for miscarriages of justice (whether keeping the guilty free, imprisoning the innocent, or bad search warrants), weakening the integrity and legitimacy of the criminal justice system or contributing to tensions between police and minority communities than the current shadowy system of informing, particularly as it involves drug offenses.

The book emphasizes one strand in the discovery tapestry of secret information — that involving state coercion of persons facing arrest and prison. Police and prosecutors offer deals to offenders in return for information about others. As with plea bargaining (of which it is a functional, although not legal, equivalent) the arrangement keeps some actors happy — police and prosecutors get their culprit and the cooperative suspect gains leniency and/or other advantages. But only the criminal informant involves betrayal. Informing on others rather than on one's self brings additional risks and costs. These include those falsely accused, those the informant may victimize as a result of not being in prison, intimidated witnesses and conflict among citizens and police. Here we see the demobilization of law and even a kind of license for rule breaking, as some offenders are given a ticket to ride the non-enforcement express.

The book's chapters deal with the nature of snitching, its legal rules, its failings, secret justice, impact on minority communities, the stop snitching campaigns, snitching in white collar and organized crime, and proposals for reform. It is based on the author's legal experience with criminal justice, court cases and wide reading across the legal and criminological literature.

The emphasis is on integration and interpretation of a vast amount of material rather than on generating new data or hypotheses testing. However gaps in knowledge and questions for future research are noted. Some are already being dealt with on the author's very helpful blog (http://www.snitching.org/archives.html) This is a book that keeps on giving.

There are many implicit hypotheses e.g., as the penalty faced by the criminal informer increases the reliability of the information provided decreases. Facing a long prison sentence can be a very compelling incentive for cooperation and fabrication. Problems are much more likely in the case of street level drug enforcement than for white collar and organized crime because the latter involve higher status, more visible persons with better legal resources and they are more likely to face federal charges where protections are better.

Alexandra Natapoff's treatment of the revolving-door, self-perpetuating devastation caused by drug enforcement informant policies in minority communities is illuminating and will be of particular interest to social scientists concerned with causes of violence and broader social and cultural impacts. The stop-snitching campaigns involve a distinct kind of moral entrepreneur advocating a change of means, rather than the traditional kind arguing for criminalizing a group's behavior. While these campaigns are very dependent on the mass media (for both self-righteously bringing the news and for peddling stop snitchin' rap music), they reflect problems that are clearly tied to drug enforcement. practices. A comprehensive approach to the legal reform of informant use is offered. New rules are needed for how informants are used as witnesses, for police investigative practices and for the problem of witness intimidation. Concrete steps are suggested involving better legislative and public knowledge; strengthened police and prosecutorial accountability; improved accuracy of informant information and closer calibration of informant practices to goals beyond conviction in a given case (e.g., violence reduction and personal and community security). Other good ideas involve regular reporting on informant practices; restricting the kind of crimes that can be worked off and that can be "officially" carried out by informants; limiting the use of juveniles, the mentally disabled and addicts; greater judicial scrutiny and a series of procedural reforms involving discovery, disclosure and reliability hearings, corroboration requirements and jury instructions. The U.S. Department of Justice has gone further with some of these policies than have local and state authorities.

A controversial proposal suggests creating a system for defense informants whose exculpatory testimony would be rewarded. There is an imbalance between the state's ability to use and reward informants and the defendant's inability to do this. The reform would "create an independent authority to award compensation benefits to informants who provide information or testify on behalf of the defense" (p. 186). Since the state now only rewards informants who bolster its case there is a strong disincentive for revealing information that would help the defense. Some of the same risks are present regardless of who is paying the piper. Yet in a truly adversarial system incentives would also be available to help the defense.

Even in the unlikely event that all the reforms Natapoff recommends were created (and worked as intended), deeper structural and ethical issues remain. Consider the question an inner-city child asked the author, "Police let dealers stay on the corner 'cuz they snitchin'. Is that legal? I mean, can the police do that?" After being told by the author that the authorities did have discretion to let offenders remain free, not surprisingly the student said, "that ain't right" and another commented, "so all you got to do is snitch and you can keep on dealing." (p. 121)

This reflects the broader conundrum of criminal justice in a democratic society. Can the student's concern be honestly responded to without creating undue cynicism and delegitmating sacred myths about the rule of law? What should the student be told? Some possibilities: — that in complex settings obtaining one goal may mean sacrificing another and rules often conflict; that means and ends are imperfectly integrated; that societies are awash in moral dilemmas and trade offs; that those in positions of authority sometimes do the wrong thing in order to do the right thing; that desirable as well as dastardly deeds can occur under cover of darkness; that sunlight can illuminate as well as blind; that discretion can no more be eliminated than it can be given free rein; and that within these limits good persons and policies matter.The problem is not discretion or secrecy but the lack of adequate rules, accountability and oversight. Alexandra Natapoff's probing study helps us see that while Dr.Faustus indeed has a seat, it need not (and must not) be at the head of the table.

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