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

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.