who were here throughout the session, this morning and this afternoon. and i would be grateful if those in the hearing room could remain seated until the usher indicates that it is okay to leave. but, with that, i will close today's hearing. and, at 4:30 we will resume with our witness, douglas alexander the secretary of state for international development. >> thank you, sir. >> thank you. :

the georgetown university law center in washington, d.c. hosts this hour long event. >> thank you. thank you all for being here. special thanks to professor me zoo zoo ie for making this happen and thank you also to the american criminal lawrie view for hosting me today. i've relied on the american criminal lawrie view for years. so it's really wonderful to get to come here and speak in this context. so i'm talking today about my new book, but in some more fundamental sense, i am talking about features of our criminal justice system that we rarely discuss. and snitching is everywhere in our criminal system. what do i mean by snitching? i'm referring to the very

specific law enforcement practice of trading criminal guilt in exchange for information. and so this talk in this book is not about everyone who gives information to the government, it's not about the citizen who calls 911, it's not about even informants who work for money, although money do, but it's about the specific public policy of permitting the trade of potential criminal guilt in exchange for information and cooperation. and i say snitching is everywhere, in our criminal system in the following sense. it touches on and bears on almost every facet of the criminal process as we know it. it takes place on street corners, when a police officer has to decide whether to pressure a suspect into cooperating or whether to arrest them at that moment. it takes place in jails and prisons, where inmates know that if they come forward with information they may get a deal. it takes place of course in prosecutorial offices, when

prosecutors have to decide which suspect should be the witness and which one should be the defendant in any particular ca case. it shapes f.b.i. investigations and other federal and local and state law enforcement investigations. of course, it's a central feature of plea bargaining as we know it, and especially in the federal system, it's a crucial feature of sentencing. the decision of how much, if any credit a defendant should get for any cooperation they have rendered to the government. so it is in this sense that snitching is part of almost every piece of the criminal justice system and this has deep implications for our legal system. it affects how we investigate crime, it affects who gets investigated for crimes, it affects how we decide who is guilty and what they're guilty of and how they should be punished and it affects people's perceptions of the legal system and their understanding of how law enforcement works.

i'd like to start today the way i started the book, with a true story. 92-year-old katherine johnston was dead, which meant big trouble for officer smith and genier. three hours earlier everything, looked promising. officers had busted fabian sheets for the third time and the local drub dealer turned informant tipped them off to a major stash, an entire kilo of cocaine. sheets wasn't one of their registered informants so they couldn't use him to get a warrant, but smith and junier invented an imaginary stitch, called him a relook confidential informant and told the magistrate judge that this non-existent snitch had bought crack cocaine at the neal street

address. the fabrication wouldn't matter in the end. after they busted in, got the kilo, it would be a major victory, but nothing went the way it was supposed. sheets' tip was bad. there was no cocaine at that address. once inside the house, the officers opened fire. and now mrs. johnston was lying at their feet, riddled with police bullets, with no cocaine anywhere to be found. so smith and genier turned to one of their regular informants, yet another stitch named alex white. they offered him $130 to say that he bought drugs at mrs. johnston's neal street home and to corroborate their false warrant application. it wouldn't bring mrs. johnston back, but at least no one would learn that they gambled everything on a weak lead from a bad snitch and that the of informant and the warrant didn't even exist. i start with this story not only that it's true, and not only because it triggered a congressional investigation, which it did, but because it's

parddicmatic. it begins with the police letting a known criminal defender walk, and this is the heart the snitching deal. it is precisely in this way that many criminal informants are able to avoid liability for their crimes by providing information, and as it was in this story, all too often this information is inaccurate. the atlanta police used their informant power, both to rely on an unreliable snitch and to invent an informant to get a warrant. because they knew with near certainty, that their decision to do so would never be scrutinized by a court. it is rare for a magistrate judge to require police to verify the identity or the information from a confidential informant, and so although as you know, we have many mechanisms for ensuring the accuracy of information and warrants, often criminal

informants use slips beneath this protective radar. and finally police in this story used their informant power to cover up their own mistake. and because informant use is so unregulated, it is easy for police and prosecutors to use informants in many ways to fill in gaps. to bolster shaky cases. to get a questionable warrant, an even to cover up errors, mistakes, or even wrongdoing on their own part. and so, it is in this way, that the tragedy of mrs. johnston's death tells us something about how our criminal justice system really works. i started by describing how criminal informant use touches on so many facets of our criminal justice system, but do we know more than that? can we estimate how many criminal informants there really are in our criminal -- in our system in any given time? and the first inning that needs to be said is that there is no direct data.

there are no mechanisms to collect data on how many informants police and prosecutors create and rely on at any given time, what crime they have committed, what crimes they have helped us solve, but we can piece together a more robust picture from data that we do know about how our criminal system works and so one useful piece of data that people turn to in this regard is federal sentencing data. the sentencing commission tells us that approximately 13 or 14% of all federal defendants receive some cooperation credit on the record in the form of pa sentencing departure at sentencing, and about a quarter of drug defendants do. the sentencing commission also tells us that it believes that about half of cooperating defendants actually get credit for their cooperation, so if 25% of federal drug offenders actually get a sentencing departure, that means probably

about 50% or somewhat more of drug defendants are actually cooperating, it's just that about half of them don't show up in the sentencing data. the sentencing commission also tells us that in every category of federal offense, criminal defendants receive cooperation credit from child pornography to murder, as well as sort of the heartland cases of drugs and increasingly fraud and white collar crime, so the entire federal criminal system is touched in these various ways by the -- by the power to turn a defendant into a cooperator. the problem with this data is that it's partial in any number of ways. first of all, it doesn't include most of the cooperation that we know about. in effect, it's the tip of the iceberg. of course, it doesn't include defendants who capitol but don't get credit, but it doesn't include all of those defendants who avoid being arrested or

prosecuted in the first place by cooperating, it doesn't account for dropped charges or other benefits that cooperators might get, as well as a host of other kinds of benefits such as immigration consideration and of course, money and other payments. so it is at best a partial picture of cooperation in the federal system. and the federal system is actually quite a small percentage of our entire criminal justice system. it represents about a tenth of felony cases, 90% of all cases take place at the state level, so for what it's worth, the federal -- the federal data gives us a glimpse, but a very partial one. we can however more generally use drug enforcement itself as a rough proxy for figuring out how prevalent the criminal informant is in our system, because we know that informant use is at the heart of drug investigations, negotiations, plea bargaining, and sentencing.

it's sometimes that every drug case involves a snitch, but anybody who has worked in the criminal justice system knows that it is par for the course for any number of the parts of a drug investigation to rely on or involve informants in some way. well, that's about 30% of our criminal justice system. drug cases make up approximately 30% of both federal and state dockets, and so we're talking about a significant portion of our system overall, that is openly reliant on criminal informant use, and being, as we know, from reading the paper about every two weeks, we see that criminal informant use is also becoming a more prevalent tactic in white collar offenses, fraud, hedge fund investigatio investigations, and other arenas like that, so while we have a core area of informant use, and that use is spreading. so what we get is a dual

dynamic. an important powerful criminal justice tool that is used widely throughout the criminal system, that determines the outcomes of thousands of investigations and cases, and yet which is at the same time deeply unregulated and mostly secret, and almost never comes to public scrutiny. in my view, this would make snitching interesting all by itself. but there is one more piece of the puzzle, and that is that the big overlooked cost of using criminal informants in the ways that we do, is it's impact on poor african-american neighborhoods. and this too is connected with the prevalence of the use of informants in drug enforcement. because drug enforcement resources are so heavily concentrated in poor urban neighborhoods, we should expect the use of informants to be likewise deeply concentrated and

this has implications for those neighborhoods as well. what is the scale of the phenomena that we're talking about? again, we have no direct data, state and local law enforcement agencies do not collect data on the informants that they use or the crimes that are committed or solved by them. but we do know a lot relatively a lot, about how drug enforcement works in the criminal justice system works in urban communities. nationally, we know that approximately 30% of young african-american men between the ages of 20 and 29 are under criminal justice supervision at any given time. by itself of course, a staggering number, but also a misleading number, right, because it's a national average, so it's masking differences between communities. there's some communities in which that number is much, much lower. at the same time there's going to be communities in which the number is significantly higher, for example, here in washington, d.c., in baltimore, studies have

shown that as many as half of the young men of that age range in any particular community might well be under criminal justice supervision at any given time. we think that about half of those people are under criminal justice supervision for drug-related reasons. and when i say drug related, either they're under supervision because they've actually committed a drug offense, buying or selling drugs, but they may have committed a drug-related offense in the sense that they commit a property offense as a result of their substance abuse problems and a high proportion of americans who are currently in jail or in prison, committed their offenses in order to get money for drugs to feed their substance abuse habit and so this half of that population, the population that is in connection with the criminal justice system, because of drug use or because of a drug offense, this is an arena in

which we would expect law enforcement to put pressure on suspects to become informants, because we know that this is typically how police handle these kinds of cases. so this -- so this quarter of the population is in a sense, sort of high risk snitch arena. how many of these people actually become informants? because of course, the pressure to become an informant and actually choosing to do it, particularly in this world of becoming an informant can be high risk, is quite a different matter. and we can't know that directly. the police don't tell us, perhaps not surprisingly, the offenders don't tell us, but we can make good guesses for the sake of argument. and i told you a few minutes ago, that at the federal level, we know that approximately 50% of drug informants cooperate, so let's say that at the state and local level, it's half of that. all right. that 25% of drug defendants

cooperate in some way. if that were true, that would mean that about one in 16 of the young men of this age range in these neighborhoods is actually a criminal informant at any given time. that's about 6%. and 6% would be a lot. that's a lot of people. in a community, in a family, just by way of contras, it's often said that approximately 10% of the east german population, before the fall of communism, were working as informants in some way with the police and we also look at that society as a dysfunctional society, precisely because we think that's an extremely high percentage of people who would be -- to be working with the government in any given time in that way. so 6% would be a lot. and so in these neighborhoods, it does not make sense to understand the use of criminal

informants solely as a law enforcement tactic or as an investigative tool. on this scale, it becomes a form of social policy. it affects how people interact with each other, how they understand each other and of course, how they perceive the criminal justice system. what might this effect look like? well, back in 1998, i was working in baltimore, i had a fellowship from the open society institute to do community lawing work and part of that fellowship involved teaching law classes in inner city baltimore neighborhoods. and one night, i was teaching such a class, at a community center, and i'm sure that most of the students weren't listening to me, but there was one student who raised his hand, and he said, i've got a question. he was maybe about 12 or 13 years old. he said, i've got a question, so police let dealers stay on the corner because they're snitches. can they do that? can the police do that? is that legal?

and when i explained to him that it was legal, and that police have discretion, to arrest or not to arrest offenders, he and his friends were disgusted. they said, oh, the police aren't doing their job and one said, oh, all you have to do is snitch and you can keep on dealing. and so for me personally, this showed me that it's important to understand that snitching has deeper implications and goes deeper than just the criminal justice system let's us know. that our criminal system sends messages to young people and to communities that can affect far deeper aspects of life than we think of when we think of them in law enforcement terms. so what to do? we have a systemwid systemwide n and it raises systemic

challenges. before i talk about the central challenges that can help us organize this phenomenon, i want to acknowledge that snitching is also an extremely powerful law enforcement too many. right. it's one of the only ways that law enforcement can often penetrate criminal organizations, gangs, enron, terrorist cells, it is sometimes the only way for the government to work its way up the hierarchy of criminal offenders is to flip lower level actors, so i don't want to miss the value of of this tool towards law enforcement ends and towards the appropriate end of punishing or forestalling crime. at the same time we have radically underestimated the costs and dangers of this practice. while the system is well familiar with the benefits, the potential benefits of the practice an many futures of

our -- features of our law protect and promote those benefits, i think it's time to turn with equal respect to the dangers that this -- that this phenomenon promotes. so what are the great challenges of snitching? well, first and foremost, and probably the best known, is the challenge of unreliability. we know that informants often give unreliable information, it's in their interest to give unreliable information, when their own lives and sentences are on the line. a now years ago, northwestern law school issued a study, their center for wrongful conviction studied all of the wrongful capital convictions about which we know. and they concluded that over 45% of those innocent people who had ended up on death row had ended up there because of the false testimony of a lying informant, making snitching the largest single source of error in u.s. capital convictions.

what the statistic says to me is not only that snitches are unreliable, but also that police and prosecutors rely on them, and that when these cases go to trial, juries believe them. so there's a way in which our system is not well protected against the dangers of unreliable informant information. and while unreliability is a terrible problem, particularly when it it leads to wrongful convictions, there is perhaps a more fundamental challenge, which is that snitching in many ways turns our criminal justice system on its head, because it prizes information over the prosecution of crime. usually, we think of law enforcement as obtaining information in order to arrest and prosecutor deter wrong doers, and to find out who they are. but criminal informant use flips that on its head and permits the government to use its power over

liability to ignore crimes or even tolerate crime, in order to protect its information sources. the use of a criminal informant inherently requires the follow ration of crime. of course, first it requires the follow ration of the crime that the -- follow ration of the crime that the of informant already -- so the department of justice has a series of iterations of guidelines for the use of informants in the criminal system, and the guidelines that govern the f.b.i. provide for two tiers of criminal activity that can be authorized by handler, tier one and tier two. tier one includes selling drugs with no expectation of their recovery, engaging in acts that might lead to somebody else committing an act of violence,

serious offenses and tier two, are all other crimes. on the recognition that informant handlers are going to authorize their informants to commit more crimes, above and beyond the crimes that they've already committed. and even above and beyond these two, police and prosecutors routinely acknowledge with concern that criminal informants will often continue offending, knowing that their relationship with the government will provide them some protection and some leeway in the event that they get caught. and all too often, law enforcement considers this sort of the cost of doing business in the dirty world of using informants. perhaps the most infamous example was the f.b.i.'s long running debacle in its handling of its mafia informants, particularly in boston, but has elsewhere. ttwo irish mob informants, whity

bowlinger, and rifleman, they worked with the f.b.i. for decades if boston and they were considered such valuable sources of information, that their handlers, particularly f.b.i. agent john connelly, covered for them as they committed murder, racketeering, money laundering. connelly himself is serving 10 years for conspiracy and racketeering charges, but congress called this episode one of the worst in f.b.i. history, and it shouldn't surprise us, that the episode involved the agencies having to rely on some criminal informants. the crimes that informants commit need not be this dramatic. it is routine practice in drug enforcement for police and agents to understand that their informants will continue their illegal drug use. and can often continue their illegal drug dealing.

many police and prosecutors acknowledge that they expect their informants to so-called skim drugs off the top of controlled buys, either for their own use or for resale, and again, many informants use their relationship with the government to ease their way around liability for other crimes that they commit. so we have an investigative technique that requires the government to tolerate or ignore crime. and particularly, in high crime neighborhoods, where informants are remaining at large, remaining at home because of their cooperation, the cost of these crimes are borne by the community. they are borne by the friends and the families and the neighborhoods of the people who come home and continue to commit these offenses. and this is a hidden cost of informing, that is rarely counted in the calculus of whether and when this is a good public policy or not. i would note just by way of

comparison, that some european countries have rejected this compromise. they've decided that the government shouldn't be in the business of tolerating and promoting crime and in those countries, there are much strict erie tricks on how law enforcement can use informants and what crimes an informant can work off by providing information. so ours is not the only way of handling this problem. the final great challenge, i think, of using criminal informants is its effect on the transparency and accountability of our criminal justice system in general. in effect, a snitching deal is a way of resolving a person's criminal liability off the record and under the table in direct negotiations with a police officer or sometimes a prosecutor and this fleiss in the face of many of our most cherished principles. whether it's due process or even

the idea that the public should know how criminal offenders are being handled by our government. because snitching is so secretive, it means that not only the public, but courts, and legislatures are unlikely to ever learn the actual way that the criminal law is being enforced. and this is significant cost of using criminal informants that also tends to go unaccounted for. so i want to leave plenty of time for discussion, so in the interest of time, i want to end by talking about the possibilities of reform. i devote an entire chapter of the book to it. it's a very exciting time for reform in the world of informants. there are a number of states who are taking on different ways of looking at this question, but i want to mention just one. but before i do that, i want to

explain why i talk about reform in the way i do. for example, i don't advocate banning the practice of using informants and given the tone of the last of half-hour, you might legitimate live ask me why. it's because the use of informants are part of much deeper choices that we have made about the way we structure criminal justice. essentially, the kinds of police and prosecutorial discretion that we permit and plea bargaining. we invest, police and prosecutors, with vast discretion in our criminal justice system. we depend on their discretion to decide who to arrest and most importantly, who often not to arrest. who to charge and who not to charge. well, as long as police and prosecutors have that authority to choose, then they have the authority not to arrest or prosecute useful suspects. so the ability to create an

informant in some sense builds into the discretionary world that we've created. likewise, plea bargaining, 95% of all american felony cases are resolved by plea. they are negotiated. they don't go to trial. we are a largely negotiated criminal system. and so if you can negotiate, then you can negotiate other information. and so it's in this sense that our criminal system naturally turns towards snitching. and so the reforms that i propose in the book accept this rea. -- reality. they attempt to work within the framework of the criminal justice system we have on the theory that we could use criminal informants nonetheless in a more reliable, accurate, fair, and transparent way. i think the most important reform that would enable us to get a better grip on this phenomenon is an informational reform. currently, nobody, not even

attorney general holder, knows how many snitches are in the system. nobody knows how many crimes they commit, how many crimes they are forgiven foreign disaster and how many -- forgiven for and how many they solve. so there is no rat nay to -- we lack the information about its costs an benefits on balance and the federal government is the lead in this regard of the department of justice as i mentioned has issued guidelines for its investigative agencies about how informants can be created, and used and most importantly, kept track of. so now although it didn't a decade ago, the f.b.i. is now required to keep track of how many crimes its informants commit, as well as how much investigative productivity they confer on any given case and so the federal government has begun to create mechanisms by which we

could rationally evaluate whether these informants are doing the kinds of jobs that we want panned what their costs and risks are. and so, if -- if states and localities were to follow the lead of the federal government, even in this small regard, it would represent a huge step forward in our ability to evaluate this public pol sivme sivment -- policy. i want to stop there. questions? comments? >> professor, why don't you do it. >> ok. i will call on anyone who has questions. >> i hate to ask -- >> we would like you to introduce yourself before you ask your question. >> i'm the visiting law professor from usc and co-resident on the west coast with sasha.

so i'm going to listen to your answer and then i have to run off, but i was thinking about the departed, the move spree, during your talk, and i was wondering, about the reaction of communities to the practice of snitching, so you talk about the 50% who snitch, and then i started to wonder about the people who don't snitch, and why it might be that they don't snitch. and the economy, the incentives that regulates the question of why they don't snitch, so they don't snitch because there's something that incentivizes them not to, whether that's the fear of retribution from members of their organization to put it in the mafia context, and so i'm wondering if you can talk about the costs to the community at large of snitching in the sense that it somehow strengthens

organizations by creating this network of rules against snitching, which will make the organization, again to put it in the mafia context, even stronger than it would have been if snitching hadn't been a practice. >> great question. remember, we're talking in this context about criminal offenders, who are choosing whether or not to give information to the government, as opposed to law-abiding citizens who just happen to witness a crime. in these communities, and i didn't talk about it here in the interest of time, but you may have heard of the so-called stop snitching phenomenon. a few years ago, there was an underground rap d.v.d., actually originated in baltimore, and these t-shirts that sometimes they said stop snitch or said snitch with a circle and a line drawn through it, they spread to cities all over the country. baltimore, boston, pittsburgh,

milwaukee, oakland, and young people would wear them, a few people would wear them to court, they were sometimes used as tools of witness intimidation, and so there's a very interesting cultural debate going on about why people who are not criminal offenders might nevertheless resist talking to the police. and this national debate has kind of taken on -- gone on under the rubric of the question, what is the stop snitching phenomenon mean in these cities? and so it goes to a number of questions. one is of course the ties between -- there's no bright line between criminal offenders and their families and neighbors and friends. today's offender arrestee might be the law-abiding citizen two years from now, and people -- sociologists have written a lot about the ties between what we tend to call the criminal justice population, but which

are just people in families on the streets in neighborhoods, and how law enforcement policies can shape everyone in a community's perception of law enforcement, not just criminal offenders and offenders at whom they're directed and i think that's an important thing to keep in mind, when we're asking what -- you know, what are these snitching policies within the criminal justice system mean. the question of why an offender might not snitch is, in my view, a complicated one. i certainly represented to people who refused to snitch because they had some sense of loyalty. i've also represented people who were -- didn't snitch because they were afraid. so the reason why people respond to incentives that law gives them at all is itself, of course, a deep question, we in

the law are constantly grappling with. how can we send messages and create incentives to get people to obey the law and why sometimes don't they, but in in context, i think that all of those things are at play. we're talking particularly in these high crime communities, although people are starting to write about it in the white collar context, what does it mean when investigative agencies put pressure on individuals in a corporate structure to inform on the corporation, and what does that do to corporate culture, and what does it do to erode the trust that might make a corporation a thriving and functioning entity, but all those questions, i think, can only be resolved when we know more about how these tools are used, and at this point, because the government is not obligated and tends not to give us information about just the kinds of incentives that it offers and how many people take them up on those offers and why, all we can

do is kind reason from general principles about why people stick with their own, why they might be afraid not to, or why they might have a principal reason to do it. >> no [inaudible] >> i wanted to ask if you could say a few words about two different categories of snitch that i think came out in your talk. and it seems to me that with one of them at least, i don't see as easily or read live what the law enforcement interest is, so in the cases where a police officer, you know, has a deal with someone, they'll trade immunity from their crime, like you said, even let them continue in the street to commit some crimes, in exchange for information about ongoing criminal enterprises, i can see where the law enforcement interest is, not withstanding the problems, you know, that you've identified, but the

category that puzzles me, has to do with cases where the informant has committed a crime and they offer up information about another previous crime that was committed in exchange for leniency with regard to their own offense, but there's no sort of ongoing promise of further information because they're out in the world, so the capital cases are the examples that i'm thinking of, so someone maybe was implicated in the underlying transaction that led to the killing that was the capital crime, maybe they drove the get-away car, maybe they were in the room when the person was killed and they say to the police, you know, i can testify against my compatriot, let's say, and testify to what i claim to be the truth, which is that they were the trigger person in exchange for a lighter sentence for the underlying transaction that they had plead guilty to, so the police say ok, they take that information and later on the northwestern project or another project makes it clear that the person against whom they testified was actually not

guilty. do you see what i'm saying, i'm puzzled why the -- what the law enforcement interest is, in getting information that in that circumstance seems really at huge risk of being unreliable, when in fact, they have law enforcement tools which are investigative tools and they can find other ways to find out what happened at the scene to hopefully find out who the guilty person was. >> i think i understand your question. tell me if it's fair to say it boils down to the question of why would police and prosecutors given what we know about the unreliability of informants, why would they take the risk that their bird in their hand is worth more than the bird in the bush. that they're going to let the offender that they have off, in exchange for information about some other potential, more shaky making a more shaky case, is that it? >> and especially given the immediate interest that that person who's claiming that they know who rolely did it has in not being, you know, a suspect

of that same crime. >> well -- >> so why does anybody believe a snitch? >> so i looked in a number of arenas to try to figure out the answer to that question. part of it is that we put an immense amount of pressure on police and prosecutors to produce. and while we would like to think that we give them lots of resources to do that, the truth is that we don't. particularly for state and local police. the f.b.i. is a better resourced organization. but for state or local police officer, who for example, has an arrest quota to meet that month or that quarter, or who is rewarded based on the potential high profile nature of cases, when an informant comes to them and says i can help you meet your goal, whether it's the

quota for that month or whether it's the high pro foil case, we've put pressure on that officer to use that informant. american police departments are famously underfunded and understaffed. they may have not have surveillance capabilities. the state of american forensic investigations is in shambles. but we give them snitches. we might not have given you a good laugh or an extra squad car, but for free, off the record, with nobody watching, you can cut a deal with any suspect that you want to. and so it's no wonder that i think that institutionally, we're shoe horning, we're pressuring our law enforcement institutions into using the cheapest, easiest tool that we give them. so there are institutional pressures to use snitches, also psychological pressures, there's

fascinating study of productors in the southern district of new york and they -- they discuss their reliance and what they consider to be their disturbing reliance on criminal informants and they complain about it. one prosecutor says, it's just one rat of after another, you're spending all your time with cooperators. it's bizarre. another one describes the phenomenon of they call it falling if love with your rat. you know that i'm supposed to, but then you get to know the guy and you know his family, and you start to rely on him and i always remember it because it's so stunning in a way, you get this warm fuzzy feeling about him, and then -- and this person is making cases for you. and professionally, we tell police and prosecutors, you must make cases. so i think that's complex. i think there are all kinds of reasons and pressures that would

lead well meaning, intelligent, want to do their job law enforcement officials to rely on a risky source. i also think that part of the fault too is in the way we structured our constitutional jurisprudence. because what the supreme court has told us is there can be a lot of unreliability in investigations. there can be a lot of unreliability in plea bargaining. when are we going to check? at trial. if a defendant wants all that information checked, and the burden is on the defendant to check, then you have a trial, and we'll give you a lawyer and we'll give you due process and we'll give you all these rigorous reliability protections. but our system almost never uses that. because only 5% of our cases actually go to trial, we almost never trigger our best reliability mechanism, and so most people are left with very

few legal protections, most defendants are left with very few legal protections, against unreliable sources and this sends a message to law enforcement, if it's not going to go to trial, it's never going to get checked. in a sense, it waters down the whole set of standards that we have of what kinds of evidence should we be relying on, and what kinds of evidence are appropriate to generate a criminal case. and -- but that's the fault of our legal system. we've told people, wait till trial and it will get checked and it's a check that almost flefer happens. -- never happens. >> i was wondering if you could talk a little bit about jailhouse snitching, and you said that this is an exciting time in terms of reform on the state level and what reform can be done to discourage jailhouse snitching. it seems to be the most unreliable, ridiculously incentivized form of testimony that can be offered and i don't know if you have any insight in

to what's being done right now. >> so let me put my excitement iin context. 20 years ago, nobody cared about jailhouse snitches. and now, many states are considering, if not actually promulgating, new legislation and new rules that would address what has become almost sort of the common wisdom that jailhouse snitches and compensated informants who are incarcerated are maybe unreliable sources. so it's an exciting time, particularly because it's at the beginning, when states are just starting to consider what should we do about this. the most common legislative response has been corroboration requirements. so at the very least, the government cannot rely solely on the testimony of a jailhouse snitch. illinois has been a leader in interest regard, in the capital arena.

they -- so because of the suspension of the death penalty in that state and the state's special attention to wrongful convictions, in the capital context, they now require reliability hearings, so if the government wants to use a jailhouse informant in a capital case, they have to hold the reliability hearing in court, in which the judge is entitled to know -- know the information about the informant and make an independent, non-adversarial decision about whether this witness is reliable enough to go before the jury or whether they're not. texas also as the result of a number of debacles passed a very strong corroboration for any undercover drug operative, so expanded from the jailhouse snitch context, so there are -- california has passed

legislation twice that would require corroboration for jailhouse snitches, although governor arnold schwarzenegger vetoed it both times. so there are any number of states that are starting to look at this particular problem and there have been now i would say of half a dozen thorough reports by non-profit organizations and criminal justice organizations, marching through the dangers of this process. i would note though, that i do think particularly in my -- back to the point i made in response to professor's question, many of these reforms are geared to trial. if you want to use the witness at trial, then all these procedural protections kick in and i think that that's narrow minded, or short-sighted, because most of the persuasive work of having a witness against a defendant gets done in plea bargaining. we have a witness who is going to say this. we have two witnesses that are going to say this. are you going to go to trial,

where you're facing 10, 15, 20 years, or are you going to take a plea to three and a half? so many of these cases are never going to get to trial because the force of having those witnesses available skews the bargaining process itself. and so i think that in time, states will move on from the question of jailhouse informants, which is becoming more and more sort of common wisdom, and really -- and question the use of information from jailhouse informants in the criminal system at large, but we're not there yet. >> it's interesting to me when you talk about plea bargaining, as we all know, most cases are plead out. but doesn't the percentage of pleas combined with the high number of informants being used suggest that all the information provided could lead to a

separate different opposite conclusion, that in fact, snitches are reliable, at least in putting aside jailhouse snitches, which may be a separate category, that if the snitches were not reliable, we would not be getting as many pleas to these cases as we do? >> so much like snitching itself, it's very hard to penetrate the world of plea bargaining and figuring out how many innocent people are taking deals and how many of these people are guilty. we know some of them must be guilty. in the drug enforcement arena, i think we can no longer say with of confidence that the use of drug informants is safely producing the conviction of the guilty. so i'm thinking of a couple of high profile cases. there was a case just a couple of years ago in hern, texas, and it was unusual in the sense that it led to an aclu lawsuit and actually a movie, called american violet. but the scenario was a very

common one. there are federally funded drug task forces all around the country and these are great engines of drug arrests and prosecutions and this particular task force was relying on an informant named derek negres, and derek was a former drug dealer and addict, who was later found not only to be suicide am, but possibly bipolar and he was facing new burglary charges. and the productor in that district -- prosecutor in that district cut a deal with him and said we'll let you off if you produce an arrest and derek went to the local housing project, african-american housing project and went through and produced a list of 24 people and produced evidence of drug deals for 24 people and the federal task force swept in and arrested them all. well, it turned out that not surprisingly, mr. megres was lying, he had fabricated

evidence of the drug deals baking soda and powder and a little bit of his own personal stash of cocaine, and eventual eventually, because some of the defendants refused to plead guilty and then the aclu stepped in with its resources, many of those defendants, the charges were dismissed against them, but the defendants that plead guilty, there was one defendant in particular who was a parent, a single mother, and she was in jail and there was no one to take care of her children, and there was an npr story about this, about a year ago, and so the only way that she could get out was to plead guilty, so she plead guilty and so her conviction stands. because the government wasn't willing to withdraw its objection, so -- and that's just one story. these federally funded task forces rely on thousands of informants. again, in this sort of secretive

off the record unregulated way, so there's no reason to think that the process at its worse is any better than that. massachusetts issued a report saying that it -- in one fiscal year, it relied on 2000 such informants and those informants had made 45% of its drug buys, so at least in the drug enforcement areason that, where we have self-interested offenders, they're not jailhouse informants, but in many ways, may be more unreliable than jailhouse informants, because they're likely to have substance abuse problems, and they're not locked up, so we may not even know where they are at any given time and they're very hard to track. landfall is getting information from them and relying on that information to make arrests and to make prosecutions, and then the pressure to plead guilty exists whether or not the person is innocent. the decision to go to trial

depends in large part about whether you think the trial system is going to be sympathetic to you. and particularly for individuals who may have a criminal record, or who themselves don't know much about the criminal system, who have an overworked, underpaid public defender, who doesn't have enough time to go through the case with them, pleading to a relatively low sentence, may seem like a very good deal. >> yes, your honor? >> i had a couple of observations and/or questions. first of all, in response to your last observation, it seems to me you failed to mention sometimes the strength of the evidence may play a role in whether or not somebody is convicted, too, but somebody once said that our system of criminal justice is a hydraulic system. there's going to be a huge amount of discretion in it and

the question is, if you squeeze it out of one end, it will appear at the other end and the goal ought to be, i think, to have the one neutral in the system should be the judge, and so are there ways, and i haven't read the book yet, so maybe you deal with this, are there ways to take some of the discretion away from the police or at least to structure it and to cabinet it and the same with the productor through guidelines or rules or whatever, an at the end, to have more transparency that if there is a problem or potential problem, it can be raised with the judge at some point? so that's my first question. my second question or observation is, that one of the players you failed to mention is the defense lawyer. and the truth is, that at least the snitches that we see in court, many of them are produced to us by the defense lawyer who is representing a client who's already been indicted and the

sentencing guidelines both state and federal have incentives for cooperating. and so should there be some burden on the defense lawyer to make sure that his or her client, who is pleading and providing information about others, as a part of a deal, is not lying. : departments don't

have rules that teach officers how to use informantss or create them and what is an appropriate time to create an informant or not. it is largely left to the discretion of individual police officers and that puts the great amount of pressure on the coroner trying to figure out how to make a case. is unfair to police officers to use them in this way and states should look to the federal government -- the fbi still has discretion to create informants and has to keep track of them and do it in certain ways that make sense. i'd do recommend that judges take more of an active role at various places in the process.

we should imitate illinois and have liability hearings available as a standard mechanism when informants are to be used as witnesses at trial. i actually think courts already have the discretion to hold such hearings of the want to under the rules of evidence. -it would be a good message to send in the criminal justice system to say that we will give special scrutiny to these particularly unreliable witnesses, witnesses work compensated and therefore pose special problems and i would just note that we have special provisions for expert witnesses not only because they are compensated because they have special knowledge and knowledge the jury wouldn't otherwise noble part of our concern about expert witnesses is that they are paid by one side and so we require a federal court to

screen those witnesses to make sure gamesmanship isn't occurring and those witnesses will serve the purposes of trial and the theory behind the liability hearings is much the same. the court serve as the gatekeeper to make sure this is actually an appropriate witness. i recommend magistrate judges who are issuing warrants should eliminate the impression that currently exists that police officers will never have to produce the informant in court. right now, as the kathryn johnson story at told at the beginning illustrates, is perfectly reasonable for police to assume that they can say anything in a warrant and no magistrate will require them to produce the person or explain what they mean by reliable confidential informant particularly at the state and

local level. the federal system is about example because the federal system has so many more resources and procedural protective levels. if magistrate judges made it clear that you have to produce the snitch, i think that it would put some pressure on that hydraulic system that you referred to and send a message that you need to believe your informant before you go to a court and ask the court to issue a warrant. your second question, less than quite a bit of time talking about that because they're so important, and one of the big differences between white collar in forming and drug in forming, white-collar defendantss are represented. in the federal system it is typical for a collaborator to have a lawyer, to have not -- not only to know their own rights but to have some other witness to the deal.

this is not only a reliable check but an ethics check, regularity check. defense attorneys have an obligation not to perpetrate fraud on the court just like prosecutors do and so the regularity of the system of representation that we take for granted in the federal system is non existent in the other world. most never get a lawyer. they will negotiate with the police officer. that deal will never -- may never hit the police report much less any other kind of documentation much less a judicial officer. one of the thing the recommend in the book is we should think about making counsel available to informants across-the-board in a way of the we take for granted in white-collar offenses and one of the differences is better resources defendants tend to have counsel were as more vulnerable defendants cannot or intend to wait to be given --

underpaid public defenders who cannot devote the appropriate resources to investigating the case that better resources informants do. my favorite snitch is jack abramof. he is a bad guy. because of his cooperation that he provided against high-level officials he got four years for his -- is corruption charges for which he has become the poster child of that lobbying behavior. why do we think this is ok? if we do. why do we think this is okay. we think it is okay because even though he is a bad guy and should have been punished more than that he gave us something more valuable. he gave as the ability to

prosecute those who violated the public trust in a way that he has a public actor did not. his cooperation shown light on flaws in our democratic system that we were able to at least partially address. he had a lawyer. his deal was fully documented. we know what happened. no further crimes were committed. and imagine if we sent him back to capitol hill. make some more deal. see what you can workout. haywire. then he went on doing stuff. we would conceive of the deal entirely differently. he is a beautiful example of a well regulated snitch deal. won the we might have some distaste for but we can comprehend why we let someone like that walkaway after four years. he would have been sentenced to more time if he had sold a tablespoon of crack. we got the value from that. i don't think we can be sure we

are getting that kind of value from the average informant deal and we need to find ways to get that value. >> you talk about snitches as people who barter or bargain for information and discretion at least in this jurisdiction. the only place that practiced in local and federal courts. it is a bit of a misnomer to say it is plea-bargain or bordering. it is a take-it-or-leave-it situation at least with this u.s. attorney's office. i don't know if this is true in other jurisdictions. and indeed when one has represented -- cooperated. as well as having had them go against my client the u.s. attorney's office tends to want the client to plead to the most serious charge so they can't say this person has gotten any sort

of benefit in advance of the fact and there is no guarantee and if we get to sentencing before judge freedman and their departure committee and i don't know how it is being done now in the federal system but i can't say my plan provided such substantial assistance. they are the gatekeeper from the beginning through the process and even if the court agreed were we entitled to have a hearing that my client had substantially assisted the government mccord is without the ability or discretion to say yes. it is not a level playing field across the board and the defense and the bench are cut out of it and they hold all the cards.

>> two comments. it is an important point. it is managed differently by every jurisdiction. part of the discretion that law enforcement has is to handle it differently. it may work one way in washington d.c.. baltimore is a little bit different and state and local authority the different yet again. one of the things more data would permit us to see is variations in the way this question is handled across the country which is an important thing to know about our criminal justice system. on your point about -- i want to take that judicial discretion peace. defense attorneys and judgees -- defense attorneys had almost no say in the amount of credit a defendant would get for cooperation and judgees had a very limited ability to make decisions because it was the government's prerogative to file a motion or not.

post booker all that has changed and speculate some in the book about what i think will happen. is clear that at least in a regular sentencing, courts now have not only the ability but the obligation to consider that in the way they would any sentencing effect with or without a government motion which was a policy statement not binding on the court and it would be error not to consider a defendant's cooperation in rendering a sentence and it will be a question -- the government will come forward and say it is not substantial and this would give courts -- this does give courts the kind of greater of 40 that you mentioned earlier and that will be the new world of sentencing in federal court. it will take a while to work

itself out. >> statutory that would get a judge out from under a statutory mandatory -- >> they just decided case may be a month ago. been name escapes me but it was actually a post sentencing case where there's a provision under the federal code where a sentenced defendant who is already serving their sentence can come back to the government and a desk for additional time and there is an additional rule a few come back one year after sentencing is there's a certain amount of leeway and then slightly less leeway after one year but someone serving a 20 year sentence at year 1010 come back and say i have information, can i get a shorter sentence and a least one federal judge has complained this is an infringement to invent

information because it is built into the code that we will reward you if you are coming up with this information even if it is years and years down the line. should those questions be handled essentially as an initial sentencing question or our district court's limited in their ability to give sentencing reductions based on that information and apparently there is a split. this is an arena in which we are going to work through these questions but also in my view of the pervasiveness of cooperation in this system. courts are going to have to deal this question under every provision whether it is first up or the mandatory minimum or post sentencing provision. this is a cottage industry that i would expect to grow over the next chunk of time. >> please by the book.

>> she is a law professor at loyola law school in los angeles. for more information visit l l s.edu. >> as washington post international correspondent, t. r. reid has traveled a whirl. is books are about his global views on contemporary issues including the united states of europe. the healing of america and confucius lives next door. join our 3 our conversation with t.r. reid and your phone calls live sunday at noon eastern on booktv's in depth. >> "oh, johnny" is jim lehrer's most recent novel. how many novels have you written? >> "oh, johnny" is the nineteenth novel. the twentieth is out next april.

it is already done and that will be a magic mark for me. but who's counting? >> when you find time and wear the right? >> undiscovered many years ago that a fire really wanted to do something i would find the time to do it. and writing these novels is extremely important to me. is part of who i am and what i do. when i wake up in the morning along your think am i going to write today? adjust think about what i am going to write. i do a little bit every day usually early in the morning and i work on weekends and when i travel. when i work on a novel is like a low-grade fever. it is with me all the time. it is crucial to who are and what i'd do. i get edgy when i am not writing. >> laptop? long hand? >> always laptop. come the command. dubya in journalism for 50 years

and i think with my fingers. you will probably notice i think with my fingers instead of my mind some times. i do everything on a laptop or a computer and i take notes like real people but i think of -- i think with my fingers now. >> when you are writing does your professional life coming to your characters? >> yes it does but in some ways. hemingway said years ago that if you want to be a writer get a job on a newspaper, because it will force you to deal with the english language in a semi coherent way every day but more importantly it will expose you to all kinds of people and situations that you can later use in your fiction writing. that is exactly what has happened to me. there is no kind of person i haven't met and interviewed and gotten to know. when i sit down to write an

awful i have a wealth of material to use and i just pick and choose. i don't consciously say i am going to base this story on a piece of journalism i have done but it just happens. it is part of my experience as a journalist and it comes out of me as i develop a character or story. >> very quickly the plot of "oh, johnny". >> "oh, johnny" is about a kid who grew up in a little town in western maryland. has a great future to be a baseball player, major leagues. world war ii happens and he joins the marines as an operator. he goes through hell. the battle of okinawa. he comes back, he survives, ready to play a baseball and his dream is to be a major-league baseball player and it goes up in the smoke of world war ii. he always has a dream and still

has it. didn't quite work out for him because he had a rough time in fog war but he is a good kid who tries very hard andthe war but o tries very hard and doesn't quite make it. >> jim lehrer and his nineteenth novel, "oh, johnny". >> this weekend for republican presidential candidate mitt romney in his latest no apology, he asserts a strong america is essential not just for our own well-being but for the world. that is part of booktv weekend on c.l.a.s.s. act 0 -- c-span2. >> the director of an institute that deals with china talks about how china's future will impact the united states. this event is 1 hour and 20

minutes. >> thank you very much. we met him at frankfurt book fair where we were introducing the launching of the chinese edition of china's megatrends. that was in september and october. it was published in china in september and this last week published in the u.s.. you as publishers lagging a little behind even though they didn't have to translate it but that is another story. we are going to talk not for very long, 15 or 20 minutes to kind of frame where we are coming from because we want to have a conversation with you. we want to talk about what your questions are. how many of you have been to