Brass Rings and Red-Headed Stepchildren: Protecting Active Criminal Informants

66 Pages Posted: 6 Feb 2012 Last revised: 18 Feb 2012

See all articles by Michael Rich

Michael Rich

Elon University School of Law

Date Written: February 2, 2012

Abstract

Informants are valued law enforcement tools, and active criminal informants – criminals who maintain their illicit connections and feed evidence to the police in exchange for leniency – are the most prized of all. Yet society does little to protect active criminal informants from the substantial risks inherent in their recruitment and cooperation. As I have explored elsewhere, society’s apathy toward these informants is a result of distaste with their disloyalty and a concern that protecting them will undermine law enforcement effectiveness. This Article takes a different tack, however, building on existing scholarship on vulnerability and paternalism to argue that society has a duty to protect some vulnerable informant interests. In particular, I assess informant vulnerabilities against accepted societal norms to determine which informants deserve greatest protection and balance informant autonomy interests against informant interests in avoiding harm.

Against this backdrop, I propose safeguards to protect the vulnerable safety and autonomy interests of active criminal informants that most deserve society’s protection while minimally interfering with law enforcement effectiveness. The proposals include: requiring court approval for the use of particularly vulnerable active informants and prosecutorial consent for the use of all others; providing training for informants and law enforcement agents in minimizing the risks of harm from cooperation; and folding informants into existing workers’ compensation schemes.

Suggested Citation

Rich, Michael, Brass Rings and Red-Headed Stepchildren: Protecting Active Criminal Informants (February 2, 2012). American University Law Review, Forthcoming, Elon University Law Legal Studies Research Paper No. 2012-01, Available at SSRN: https://ssrn.com/abstract=1998787 or http://dx.doi.org/10.2139/ssrn.1998787

Michael Rich (Contact Author)

Elon University School of Law ( email )

201 N. Greene Street
Greensboro, NC 27401
United States

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