In May of 2008 recent Florida State graduate Rachel Hoffman reluctantly got in her car with 13,000 dollars in cash set to buy 2 and ½ ounces of cocaine, 1500 pills of Ecstasy, and a semi-automatic handgun in a Tallahassee P.D. approved sting operation. A few weeks earlier, two disparate events promised to change the trajectory of Rachel’s life. First, she earned admission to a master’s program in mental-health counseling. Second, more dubiously, Rachel found herself pinched by police who discovered 5 ounces of pot, along with assorted pills of Ecstasy and Valium surreptitiously tucked under her couch cushions. Threatened with possible felony charges of possession with intent to sell and “maintaining a drug house,” Rachel decided to cooperate. Information leading to a mere pot bust though—authorities informed Rachel—would not be enough to make the charges disappear. Instead, they would need Rachel to bring Tallahassee P.D. arrests netting large quantities of heroin, cocaine, ecstasy, or guns. With little choice, Rachel unwittingly made herself disposable. As such, Rachel took on a new, less human persona in the eyes of law enforcement. Rachel became Confidential Informant No. 1129; one of many replaceable, interchangeable parts in the modern War on Drugs.
Whether Rachel’s attackers discovered the wire in her purse, or simply found the nature of her first-time purchase suspicious is relatively inconsequential. What does matter, very much so, is that Rachel’s body—riddled with bullets from the gun she planned to buy for police—turned up 50 miles southeast of Tallahassee. As you might imagine, the murder of a white middle-class, female, suburban college graduate garnered considerable media attention. Hoffman’s case received prolonged coverage from Jenifer Portman of the Tallahassee Democrat, Vince Beiser of the Huffington Post, and ABC News. The saga of Rachel Hoffman and the overarching issue of confidential informants has now resurfaced, with the publication of Sarah Stillman’s recent New Yorker piece entitled, “The Throwaways.”
Far too often, confidential informants adversely effected by the modern war on drugs do not fit the description of Rachel Hoffman. Lacking the trappings of a college education, middle-class status, and perhaps whiteness, many cautionary tales of informants go untold. More frequently, the disposable citizens shuffled through the dangerous informant system are young people from low-income communities, often nonwhite, and sometimes underage. The risk, and potential loss of these human lives receives less media scrutiny and legislative concern then they ought to be afforded.
Everyday, as Sarah Stillman contends, “offenders are sent out to perform high-risk police operations with few legal protections.” Many are juveniles, as young as fourteen and fifteen. Kentucky resident Lebron Gaither began his short career as a confidential informant for police at the age of 16. Two years later Lebron’s testimony would prove pivotal in the arrest of Jason Noel, whom he’d set up. Rather than rest satisfied with Gaither’s testimony, law enforcement sent him out the very next day—inexplicably—to buy more drugs from Noel. That day, Lebron’s career as an informant came to an abrupt halt, as did his life. Lebron Gaither was tortured, beaten with a bat, shot with a pistol and shotgun, run over by a car, and dragged by a chain through the woods.
In 2011, Shelly Hilliard, a teenager from Detroit was caught smoking a blunt on the balcony of a Motel 6. Police then discovered ½ an ounce of marijuana in the toilet tank. Given Shelly’s transgender status, she became especially petrified at the prospect of being thrown in jail with men. Unfortunately, police offered Shelly a choice which would prove even more dangerous. She could set up her dealer, Oasim Raqib and walk away from all charges. She agreed. After being arrested and released Raqib, with his friend James Matthews, tracked down his snitch. Together, the two men strangled, mutilated, burned, and dismembered Shelly. Lyniece Nelson, Shelly’s mother, lamented the sad truth, “Now I lost my baby for an ounce of weed. It’s like they just threw her away.”
Teens have been used as informants since the early 1980s, originally deployed to identify retailers selling alcohol to minors. In the 1990s, the federal government’s Substance Abuse and Mental Health Services Administration (SAMHSA) expressly sanctioned the use of children as informants in the prosecution of tobacco cases. The use of informants however—underage and otherwise—reportedly exploded in the mid-to-late 1980s. Passage of the Anti-Drug Abuse Act of 1986 and 1988 imposed harsh mandatory minimums for drug offenses, often for petty charges. The new approach also codified what would become an increasingly popular carrot for the accused: by providing “substantial assistance” to law enforcement, potential informants would be granted early release, diminished charges, or in some cases, find their charges dropped entirely. The nature of asset forfeiture laws, also part in parcel of 1980s drug reform, incentivized drug arrests for police departments. In effect, departments could now keep a hefty portion of cash and other resources netted in drug arrests. This launched what can only be explained as a commercial enterprise as confidential informants became a major cog in the modern, numbers-driven war on drugs.
In 1963, Chief Justice Warren first weighed in on his concern over the use of confidential informants in Lopez v. United States. Warren wrote: “This Court has not yet established the limits within which the police may use an informer to appeal to friendship and camaraderie-in-crime to induce admissions from a suspect, but suffice it to say here, the issue is substantial.” In the nearly 50 years since Warren’s remarks, the nation has made little headway in mitigating the minefield of ethically questionable, unsafe treatment of informants. Nevertheless, the limits to which Chief Justice Warren references must exist, despite the inability of the judiciary and legislative branches of government to articulate such limits with concrete reform.
The use of informants frequently presents numerous murky legal questions. For example, if informants are paid or offered a reward for their services, are they then operating as legal extensions of law enforcement? If so, might their participation in drug busts be grounds for entrapment? In 1983, the court noted their distaste for contingent-based agreements with informants in the case of Williamson v. United States: “In the majorities view, the very fact of hiring an informer on a contingency is ignoble and improper.” Unfortunately, the case failed to produce any clear guidelines regarding conduct explicitly forbidden when dealing with informants. Despite being offensive to the court, contingent-based agreements were not expressly forbidden.
The use of juvenile informants raises still more questions. Activists agitating for change in this arena frequently invoke the legal concept of Parens Patriae. Rooted in the broad notion that the state has an obligation when dealing with those in need of special protections—for example, juveniles, the mentally ill or impaired, and the drug-addicted—to act as a parent would. Thus, the federal government has long undertaken the role of protecting vulnerable individuals deemed “legally disabled.” Society views children as vulnerable incompetents requiring protection from both themselves and others. As such, the government invokes the doctrine of Parens Patriae to create and maintain juvenile delinquency systems. Moreover, the doctrine permits government to temporarily or permanently remove children from their homes in order to protect their health or safety. Similarly we legislate the conduct of minors in ways distinguishable from those of adults. Prohibition on the sale and use of alcohol, tobacco, and pornography; the right to vote, to serve on juries, and in the military; or even enter formally binding contractual obligations all offer examples of Parens Patriae at work. The nature and use of juvenile informants directly conflicts with our nation’s long-standing commitment to protect children. This is why juvenile records are sealed, and juveniles are typically tried in juvenile courts. Both offer implicit acknowledgement that those under the age of 18 require special legal considerations and protections.
The importance of protecting children’s legal rights has been reaffirmed as recently as 2005 in the Roper v. Simmons decision, prohibiting the use of the death penalty for minors. The decision largely rested on science demonstrating juveniles’ immature decision-making capacity, limited life-experience, low-risk aversion, increased impulsivity, and emphasis on short term gains rather than a balancing of long and short term behavior consequence. Despite this reality, juveniles continue to play a significant role assisting law enforcement in their wars on drugs, crime, and gangs.
The use of children as informants has been largely unacknowledged as regulations for informants generally fail to distinguish between adults and juveniles. No national guidelines on the use of juvenile informants by prosecutors currently exist. More alarming, no government agency tracks the use of juvenile informants. Because law enforcement and prosecutors inconsistently define the term informant, the prevalence of such tactics are heavily underreported. Many distinguish the informal use of juveniles for information gathering from the formal use of children as informants by characterizing many as “friends” who “volunteer” information. In exchange law enforcement may hand down a “favor” to the child in the form of monetary compensation, job placement, and other assorted help. Finally, the use of child informants remains concealed behind the veil of the highly discretionary, confidential world of juvenile court filings which cannot be viewed without special dispensation.
Some states have adopted small, albeit inefficient controls on the use of juvenile informants. In 1997, the New Jersey Attorney General issued law enforcement guidelines on the use of informants, banning the use of children under 12 years of age, children undergoing drug and/or alcohol counseling, and those afflicted with mental and physical illness. Unfortunately, the guidelines do not prohibit the use of children unless they are offered criminal leniency and engaged in undercover work. This means that child informants who are paid or rewarded in any number of ways other than criminal leniency fall through the cracks. The Statute does not regulate these types of informant relationships. For its part, California followed suite, prohibiting recruits younger than thirteen after the brutal murder of 17 year-old informant Chad MacDonald and the rape and murder of his 15 year-old girlfriend. California’s ban however, remained absolute, absent the loopholes of New Jersey’s guidelines.
In Florida, the death of Rachel Hoffman also prompted reform. “Rachel’s Law,” as it came to be known, proposed several reform measures. First, the proposed law mandated the right to counsel for prospective informants. Miranda rights and 6th amendment protections often don’t apply to informants because they have never been formally arrested or charged with a crime. The law also sought a uniform ban on the use of any and all juvenile informants. Lastly, the law sought to advance the notion of “offense parity,” addressing the gap between nonviolent, low-level drug offenders being asked to apprehend high-level dealers, particularly those with violent histories.
Not surprisingly, Rachel’s Law met significant opposition. The Florida Department of Law enforcement, Florida Sheriffs Association, and other groups lobbied against the law. More than a hundred law enforcement officials attended the legislative meetings in force. Sheriff Larry Campbell of Leon County decried that if the bill passed in its original form, it would mean “the end of law enforcement.” Opponents of the bill claimed that the right-to-attorney clause would make it far to arduous and time-consuming to apprehend and turn drug offenders on the spot. They also contended that teens were needed to promote public safety, particularly to penetrate social networks of other young drug offenders.
Eventually the legislature made a compromise, appeasing law enforcement lobbying efforts. The bill passed, stripped of many significant provisions. The right to legal counsel as well as the measure to exclude all juveniles were dropped. However, some demonstrated progress can be seen under Rachel’s Law. Law enforcement must now undergo required special training on the use of informants. They are also required to take into account a new recruit’s age, emotional state, and the level of risk involved in a given operation. Most importantly, in all operations involving informants, safety is explicitly the number one priority. On May 7, 2009, Governor Charlie Crist signed Rachel’s Law, making it the first comprehensive legislation of its kind. Certainly, nothing less than national legislation will prevent law enforcement from offering juvenile informants at the altar of the modern War on Drugs. Citizens and legislators must ask themselves, is this acceptable “collateral damage” in order to protect public safety?