NACDL Renews Calls for Nationwide Reforms, Citing Federal Findings on Orange County, CA Program to Incentivize and Obscure Jailhouse Informants
Washington, DC (Oct. 14, 2022) – On October 13, the Justice Department’s Civil Rights Division announced their findings from a six-year investigation into Orange County, CA prosecutor and law enforcement use of jailhouse informants. In a report, the DOJ outlined how Orange County prosecutors and Sheriff deputies ran a covert program to track and incentivize custodial informants used to obtain incriminating statements from individuals arrested and charged with crimes. Prosecutors hid records of their informant use and did not disclose critical exculpatory evidence related to the informants in an overt violation of criminal defendants’ constitutional right to due process.
In November 2015, NACDL joined with a group of criminal legal advocates – including the ACLU of California, the National Association of Public Defense (NAPD), California Attorneys for Criminal Justice (CACJ), and the California Public Defender Association (CPDA) – in co-signing a letter demanding suppression of informant-related evidence and a DOJ investigation into the Orange County Sheriff’s Department and District Attorney’s Office widespread, coordinated, and unlawful use of informants. With the DOJ’s investigation now complete and the extensive scope of abuses revealed, NACDL renews calls for nationwide, systemic reforms addressing prosecutorial and law enforcement recruitment, tracking, use, and disclosure of confidential informants.
NACDL President Nellie L. King stated:
"Corrupt, covert, and unconstitutional jailhouse informant programs, such as the one documented by a six-year federal probe in Orange County, California, produce racially biased, wrongful convictions, undermine the integrity of the judicial system, and violate the Sixth Amendment rights of people accused of crimes to have their defense attorney present before being questioned by government agents. Any time prosecutors and law enforcement incentivize jailhouse informants to question people accused of crimes without a defense attorney present, there should be – but too often is not – full and timely discovery about the informants and the circumstances of their recruitment; a pre-trial hearing into the admissibility of likely tainted evidence; and adequate instructions to the jury about the distinct possibility that jailhouse informants’ testimony is unreliable, especially when there’s no corroborating evidence."
NACDL Executive Director Lisa Monet Wayne stated:
"Any of the jailhouse informant programs nationwide remain vulnerable to the kinds of corruption seen in Orange County unless and until we see the kinds of nationwide, systemic judicial reforms for which NACDL and other equal justice advocates have been calling for for years. For example, prosecutors should be required to provide corroboration instead of relying solely on a jailhouse informant who has incentive to lie. Covert recruitment of custodial informants produces an alarming number of racially biased, wrongful convictions. Juries find jailhouse informants persuasive because the prosecution doesn’t fully and completely disclose the magnitude of pressures and incentives brought to bear on an incarcerated informant. Juries convict a disproportionate number of Black and brown people accused of drug law violations, based on the word of a single jailhouse informant whom the government has incentivized, if not coerced, because the prosecution lacks any meaningful corroboration."
NACDL President Elect Michael P. Heiskell stated:
"The unlawful and biased practices previously engaged in by Orange County prosecutors and law enforcement in their jailhouse informant program was likely ubiquitous at the time. And, in the absence of systemic and nationwide judicial reforms, I can’t speak to whether some semblance of the problem remains elsewhere or how pervasive and pernicious these corrupt jailhouse informant practices may be. What’s certain is that there must be accountability. Any prosecutor who violates the constitutional rights of individuals accused of crimes, in Orange County or elsewhere, should be named so that appropriate punitive measures can be pursued with their state bar association."
Proposed Reforms to Address Illegal Use of Jailhouse Informants
NACDL urges the Department of Justice and District Attorney offices across the country to adopt the following reforms:
- Data Collection and Reporting
- Each jurisdiction should maintain an informant registry in which law enforcement officers register specific data about each informant, how the information is used, and the results obtained from the informant.
- The Attorney General should maintain a National Informant Registry database.
- Heightened Warrant Requirement
- Require any warrant based on information from an informant to search and seize a controlled substance or install a tracking device must include detailed information about the informant.
- Pre-Plea Disclosure
- Before the court accepts a plea agreement, the government must provide the defendant with all exculpatory material, including impeachment evidence against any government witness or informant.
- Adequate Jury Instructions and Reliability Hearing
- Require the government to disclose the use of informants at a pretrial conference; require a hearing to determine whether the informant’s testimony is reliable.
- If informant testimony is admitted, the court should instruct the jury that such testimony can be unreliable.
- Corroboration Requirement
- Convictions must be corroborated by evidence other than the testimony of an informant.
- Accountability
- Failure to report information that an informant has committed an offense shall result in discipline.
Contacts
Jonathan Hutson, NACDL Senior Director of Public Affairs and Communications, (202) 465-7662 or jhutson@nacdl.org
The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.
