Criminal Informants Essay

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Informing aids investigation but imperils legitimacy. It demands accountability. Informants [X], a term used synonymously with informers, are those individuals who pass intelligence or incriminating evidence about third-party subjects [S] to the police or other authorities [P], covertly and in expectation of anonymity and/or reward. Thus they are distinguished from witnesses who testify in court. The information passed is that which X is able to supply as a consequence of their relationship with S, information P could not otherwise acquire.

The principal moral concerns are (1) the information will be used to disadvantage S; (2) it is a betrayal of S because S would not voluntarily disclose the information to P and it is passed without S knowing; (3) X may be motivated by malevolence toward S or by the desire for personal advantage, using S as a means to that end; and (4) P may have coerced X. In this arena the various parties seek their own advantage through exploiting the vulnerabilities of others. This is inherently immoral and can be justified only in certain circumstances.

Informers are often, but not always, offenders themselves. Their criminal association with S affords X access to the incriminating information desired by P. Noncriminal informants include those who provide professional services to S (e.g., accountants, bankers) and provide information about either licit or illicit activity by S that would inform P’s investigation of S. Relations and friends of S constitute other noncriminal informants. The exploitation of such relationships compounds the immorality of exploiting vulnerabilities.

The moral landscape within which informers are used is further complicated by different legal frameworks within which P utilizes X. What constitutes proper and lawful use of X varies between jurisdictions. Some conduct often considered unexceptional in U.S. jurisdictions—entrapment, for instance—is unlawful (and considered outrageous) in United Kingdom (UK) jurisdictions. This has knowledge and understanding implications for practitioners and researchers studying informer-related material from foreign or interstate jurisdictions, and operational implications for cross-border investigations planning and evidence management.

What Justifies Use of Covert Informers?

Seumas Miller and John Blackler’s moral theory of policing proposes that the most important collective end of policing is the protection of fundamental and justifiably enforceable (aggregate) moral rights, that is, a collective good to which citizens have a joint right. Achieving this end occasionally and exceptionally involves recourse to harmful and normally immoral methods such as the use of covert informers.

While this is sufficient justification for institutional strategic purpose, elaboration is required for operational justification and to define occasion and exception. To justify any given deployment of X, certain criteria must coexist. First, the intended use of X must be consistent with the moral theory of policing. Second, reasonable suspicion must exist that S has committed, or intends to commit, a crime. Third, the crime must be sufficiently serious to warrant the use of normally immoral methods. Fourth, the use of X must be a last resort; no less morally harmful means exist of acquiring the specific piece of information that is needed. Fifth, the specific piece of information that is needed must be significant to the investigation; the investigation could proceed no further without the specific piece of information.

X is usually of value to P because of a criminal association with S. But is it morally justifiable for X to participate in crime with S in order to secure the piece of information that will enable P to frustrate and prosecute that crime? This is a different order of moral magnitude from merely passing information that X already knows about S or which X can easily acquire from S without committing a crime to do so. If X has to commit a crime with S in order to acquire the information P needs, then X is committing crime on behalf of and for the purposes of P, which is a corruption of the fundamental end of policing.

Different jurisdictions take different positions on whether X may lawfully participate in crime in order to provide information about S to P. Even where such conduct may be lawful, it will not necessarily be morally justifiable. Further criteria, additional to the five above, must be met. So sixth, the nature of X’s participation in the crime must be minor; nonparticipation will always be morally preferable to participation. Finally, X’s participation must be inconsequential in that the crime will go ahead whether X participates or not. P’s purpose is to prevent crime or prosecute such crime as could not be prevented. If the nonparticipation of X is sufficient to frustrate the intended crime, then P must be satisfied with that outcome.

What Uses of Informers Can Be Justified?

Not only must the strategic and operational use of X be morally justified; so, too, different tactical uses require justification. There are three common usages of X globally. First, X is asked by P to supply information about S already known to X. Second, X is tasked by P to use the relationship with S to seek information about S not yet known to X. Third, X is used by P to create/facilitate an arrest opportunity for the purposes of detaining S. Of these three usages, the first two can be justified on the basis of meeting the first five criteria above. The third usage is morally more complex. It may involve laying a trap, or it may involve entrapment.

Laying a trap involves creating circumstances in which persons inclined to crime are presented with a criminal temptation—virtue or integrity testing by another name. P does no more than observe the arena, intervening only if S takes the bait. Entrapment occurs when P (or X on P’s behalf) conceives a crime and then takes active steps to ensure S participates to the extent necessary to warrant arrest. These scenarios are similar in description but morally distinct. In laying a trap there may be no need for X to be involved. X often actively facilities entrapment. For example, S1, a drug user, is arrested in possession of illegal narcotics. P promises some benefit to S1 provided the latter participates in an operation (for example, a further purchase) to entrap S2, a drug dealer. P and S1 collaborate in a conspiracy to ensure S2 commits a crime that might not otherwise have been committed. This strategy might address performance targets but seems unjustifiable within the context of the moral theory of policing. There is no victim whose morally enforceable rights are being protected in this instance.

Exploitation of X by P

Informer motivation is little studied. X’s malevolence, when it plays a part, is morally unjustifiable and undermines P’s moral legitimacy. For some, informing represents a source of income in a dubious moral market. Others exchange information for a perceived practical benefit, for example, the preferment of less serious charges against themselves. In this marketplace, the currency is coercion rather than cash. The promise or provision by P of leniency toward arrested individuals provided they inform against others is a choice presented to the potential X in circumstances of limited or nonexistent autonomy. It is not a fair exchange and renders X beholden to P. There is nothing to stop P reneging and demanding more of X in exchange for the same benefit than was originally bargained. Arguably such promises also undermine the roles of the fact finder and judge at court. Whose morally enforceable rights are protected when a drug dealer is charged instead with mere possession? Society, represented through the court, is denied an opportunity to denounce and sentence an offender for the conduct that really occurred.

Coerced collaboration becomes exploitation when P requires X to testify against those about whom he or she has informed. In some jurisdictions practitioners plan investigations and prosecutions so as to keep X out of the evidential chain and so out of the witness box. Preserving X’s anonymity protects X from retribution by S and leaves X free to inform again; an asset has been created. Sarah Stillman has illustrated the adverse, sometimes fatal, consequences when P coerces X into informing and then exposes X in the witness box. On the other hand, the right to face one’s accusers is a valued principle at trial and should not lightly be surrendered.

Utilization of informers imperils the moral legitimacy of state agents and institutions. Yet there is a strong pragmatic rationale for using (corroborated) information from informers in investigating crime. The moral theory of policing provides an overarching moral justification, although individual circumstances require specific justifications. The community’s joint right, protected when P relies on the moral theory of policing to justify otherwise harmful conduct, is not the only morally enforceable right at stake. X has interests deserving protection as well, particularly where P has coerced X into informing.

Bibliography:

  1. Harfield, Clive. “Police Informers and Professional Ethics.” Criminal Justice Ethics, v.31/2 (2012).
  2. Miller, Seumas and John Blackler. Ethical Issues in Policing. Aldershot, UK: Ashgate, 2005. Stillman, Sarah. “The Throwaways.” The New Yorker (September 3, 2012). http://www.newyorker.com/reporting/2012/09/03/120903fa_fact_stillman?currentPage=all (Accessed September 2012).

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