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Abstract:
This Article explores what limits the Thirteenth Amendment’s prohibition on involuntary servitude places on the government’s use of informants in criminal investigations. Informants are a crucial part of all law enforcement efforts and a keystone in the investigation and prosecution of organized crime syndicates and “victimless” crimes, such as narcotics trafficking, prostitution, and gambling. While many informants merely provide previously-obtained information to the police, others take more active roles in assisting law enforcement, engaging in controlled drug buys, wearing wires, or infiltrating criminal organizations. This latter group of “active informants” is the most useful to law enforcement because they work under police direction to obtain hard evidence of criminal conduct. Though active informants cooperate for many reasons, most assist the police out of fear that if they refuse, they will be subject to criminal prosecution or more severe punishment. This Article argues that by compelling these “coerced informants” to work under such a threat, the government violates the Thirteenth Amendment’s prohibition on involuntary servitude.

As a doctrinal matter, compelling coerced informants to serve under threat of criminal sanction fits the Thirteenth Amendment’s definition of involuntary servitude. Moreover, the use of coerced informants offends the free labor principles that animated the passage and ratification of the Thirteenth Amendment and underlie the Supreme Court’s Thirteenth Amendment jurisprudence. Though recognition that the use of coerced informants violates the Thirteenth Amendment may require significant changes to law enforcement practices, there are adequate alternatives to facilitate criminal cooperation that will not hamstring law enforcement efforts. In fact, these alternatives will ultimately strengthen other constitutional protections and ameliorate some of the negative societal effects on high-crime neighborhoods of the widespread use of informants.

Thirteenth Amendment, informants, informant, informer, involuntary servitude

Abstract:
This Article explores how the incentives created by the civil False Claims Act (FCA), a qui tam statute that is the government’s primary litigation tool for combating fraud, influence the Department of Justice’s (DOJ) prosecution of fraud actions. Over the past twenty years, the government and relators have recovered more than $18 billion in FCA actions, of which more than $11 billion was recovered in qui tam actions filed by private persons. Though other commentators have explored the policies underlying the FCA and even the FCA’s incentives to “blow the whistle” and file a qui tam action, no one has closely analyzed the incentives that impact the government’s subsequent decision whether to take over, dismiss, or allow the relator to proceed with a qui tam action. This Article’s examination of these incentives reveals that the FCA improperly discourages the DOJ from wresting control of errant qui tam actions from relators.

As a result, over the last twenty years, 94% of qui tam FCA suits that the DOJ has allowed to proceed (totaling more than 3,000 actions) have been dismissed without recovering any funds. These non-meritorious suits have exacted a heavy toll on defendants, the judicial system, and the public as a whole. Meanwhile, the non-intervened qui tam actions that have succeeded in recovering funds present a different problem: FCA liability has expanded haphazardly without any guarantee that the new theories of liability will work to the public’s benefit. These problems have combined to alienate regulated industries, threaten public confidence in the legitimacy of the government’s fight against fraud, and endanger future industry cooperation in government enforcement initiatives. Where other commentators have urged drastic changes to the FCA to try to resolve these issues, this Article concludes that the problems can be largely ameliorated by two relatively minor amendments that would encourage the DOJ to exercise its intervention and dismissal powers more aggressively, without losing the current benefits of FCA litigation.

False Claims Act, FCA, health care fraud, prosecutorial discretion, procurement fraud, government fraud