Coerced Informants and Thirteenth Amendment Limitations on the Police-Informant Relationship

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.

Number of Pages in PDF File: 47

Keywords: Thirteenth Amendment, informants, informant, informer, involuntary servitude

JEL Classification: K14, K42

Accepted Paper Series