Toward a New Vision of Informants: A History of Abuses and Suggestions for Reform

Abstract

Informant mishandling and misconduct victimizes many innocent people. Examples of the resulting harm include: prosecutions based upon informant perjury; false arrests due to unreliable informants; non-disclosure of informant information by prosecutors in criminal proceedings; informant abuses promoted through rewards; and felonious activity committed with the knowledge and, at times, assent of the police and prosecutors. Informants are undoubtedly important in policing invisible crimes: where there is no victim, or the victim is reluctant to come forward and complain. Law enforcement practitioners primarily claim informants are vital or indispensable to drug and conspiracy investigations. The current curative suggestions from law enforcement - new guidelines, training, lists of do's and don'ts, and large scale investigations without any meaningful results' - do not target and will not re- solve the problems. Informant abuses might be corrected if the responsible official or officials were investigated, disciplined, retrained, terminated, or criminally prosecuted. Law enforcement officials, however, are difficult to prosecute;' internal investigations usually result in exoneration. When a scandal does emerge, the investigator usually attacks the weakest links and the informants are prosecuted for perjury or another crime. Those whose conviction was based on the informant perjury, however, remain incarcerated unless a writ of habeas corpus is granted. The proper solution necessitates creating greater accountability and responsibility for informant mishandling and misconduct. This article proposes a framework that builds on established constitutional rights and incorporates the nature of the informant-handler and informant-state relationships. The key to incorporating the informant relationship is to apply a rebuttable presumption that informant conduct is state action (as required by the Fourteenth Amendment) and action under color of law (in accord with § 1983). This presumption will instill responsibility in law enforcement agencies for their choice in using informants. This new state action/color of law relationship will have a significant impact upon how courts view informants in both criminal and civil litigation. In both contexts, the presumption creates a linkage between the government and the informant that necessitates the abandonment of both the assumption of risk doctrine and the distancing of the informant from the handler. In the criminal context, informants will no longer be free agents, but integral parts of the law enforcement apparatus. In civil litigation, plaintiffs will have an essential element for a § 1983 action and agency for a state tort claim or Federal Tort Claims Act (FTCA) claim. The presumption that the informant is a state actor, employee, or agent will also narrow the proximate causation gap necessary to hold law enforcement officers and agencies responsible and accountable.