Many thanks to TPM for hosting this discussion about snitching, and inviting me to participate. One of the challenging aspects of this public policy arena is its secrecy, and, until recently, the lack of public debate. Discussions such as this one simply did not take place a few years ago.

Snitching should be understood in the larger context of our modern, massive criminal justice system, which is characterized by two features: discretion and negotiation. Police and prosecutorial discretion is paramount. Ninety-five percent of all felony cases are resolved through plea, not trial. As a result, judges and public adversarial procedures such as trials are decreasingly relevant; much of what goes on remains informal and undocumented. As Doug points out in his post, this makes determinate sentencing extremely powerful.

Snitching is paradigmatic of this discretionary, behind-the-scenes reality. Increasingly, guilt is resolved through off-the-record deals between offenders and law enforcement – in which criminal laws are ignored or suspended in exchange for cooperation. While SNITCH documents relatively complex investigations, snitching can be as simple – and common -- as the ongoing deal between the street corner dealer or addict and the local police officer. The use of criminal informants is thus a deep policy phenomenon, offering a window into the informal, negotiated reality of the criminal process.

SNITCH focuses on the federal system, which is appropriate because so much of the war on drugs has been driven by federal initiatives, and also because the federal government provides the most public data. But the federal system is just one piece of the puzzle – around 90% of all criminal cases are state and local. In order to assess the full impact of informant use, state and local practices deserve more scrutiny. This is particularly important for deciphering the impact of snitching on impoverished, high-crime communities and residents’ perceptions of police there, as John notes in his earlier post.

SNITCH is a real contribution to the public record and debate, not least because many people simply do not know that law enforcement’s use of informants can be as unreliable, chaotic, or even corrupting as it sometimes is. I am currently writing a book on the legal and public policy ramifications of criminal informant use, and I found SNITCH very helpful. It gathers together extensive data on secretive practices and events, and clearly dramatizes the disorder characteristic of the informant institution.

One correction for the record: SNITCH cites me as having advocated the elimination of the 5K1.1 cooperation provision. I didn’t. Rather, I recommended eliminating “the government motion requirement in 5K1.1,” because that provision gave prosecutors complete control over whether a court can consider a defendant’s cooperation in departing from the guidelines. At least it did before the Supreme Court’s decisions on Monday in Gall and Kimbrough which, by restoring judicial discretion over federal sentencing, will likely produce important new law on cooperation.