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Article Excerpt
INTRODUCTION: WHERE'S WALLACE?
I. OPERATING OFF THE RADAR: THE REGIMENT OF JUVENILE INFORMANTS A. Mission Defined B. Recruitment Efforts C. Deployment Levels D. Operating Procedures II. BORDER CONFLICT: PARENS PATRIAE, POLICE POWER, AND JUVENILE INFORMANTS IN THE "WARS" ON DRUGS, CRIMES, AND GANGS A. The Government as Child Protector B. The Government as Warrior C. Juvenile Informants behind Enemy Lines 1. The Government's Perspective a. Efficient and Necessary Crime-Solving Strategy b. Juveniles Are Miniature Adults c. Promotes Rehabilitation 2. Through the Eyes of a Child a. Physical Harm b. Psychological and Ethical Harm c. Family Tension III. DRAW DOWN; MODEL APPROACHES TO CURTAILING THE USE OF JUVENILE INFORMANTS A. Model #1: A Categorical Rule 1. The Rationale 2. The Pros and Cons B. Model #2: Prior Judicial Approval 1. Procedural Matters 2. Proposed Standard #1: The Best Interests of the Child. 3. Proposed Standard #2: Informed Consent by a Mature Minor 4. The Pros and Cons a. Best Interests of the Child Standard b. Mature Minor and Informed Consent Standard C. Plotting the Course CONCLUSION
INTRODUCTION: WHERE'S WALLACE?
Sixteen-year-old drug dealer Wallace wants to get out of the Baltimore City drug trade. Orphaned and homeless, Wallace previously dropped out of school and now wants to go back. He's tired of the drug "game" and conflicted about his role in it. He tells this to D'Angelo, his boss and friend. Always supportive, D'Angelo gives Wallace some money to help him get out of the business.
Shortly thereafter, however, Wallace is arrested. Still eager to get out of the game, Wallace tells the arresting officer he is willing to give up information he knows. He identifies three of his drug crew members who were involved in the torture and murder of another teenager. He also explains his role as the one who pointed out the youth to the murderous thugs. To keep him safe before he testifies, the officers take Wallace to stay with his grandmother in the Maryland countryside.
Meanwhile, Wallace's and D'Angelo's bosses, who ordered the teenager's homicide, decide that Wallace needs to be eliminated because he can link them to the crime. When D'Angelo's bosses ask him where Wallace is, D'Angelo tries to protect Wallace. He assures them that Wallace is not a threat because he is no longer in the drug business and has moved out of town.
Out in the country at his grandmother's house, Wallace is homesick and bored. Not knowing that he's been tagged for elimination, he decides to go back to the city projects to ask for his "job" back. When he returns, he is immediately killed by the organization's "muscle." D'Angelo, unaware of Wallace's death, is later arrested by officers after completing a drug run. During interrogation, officers show D'Angelo pictures of Wallace's dead body and accuse him of not protecting his own. D'Angelo is upset but non-responsive to their accusations. Later, when D'Angelo's boss and the crew's lawyer visit him in jail, D'Angelo repeatedly implores them: "Where's Wallace?" He gets no answer to his question. (1)
America has long had an ambivalent relationship with its children, especially regarding criminal and juvenile justice issues. On one hand, society views children as vulnerable incompetents requiring protection from themselves and others. Thus, the government invokes the doctrine of parens patriae, meaning the authority of the sovereign to protect vulnerable individuals, (2) to create and maintain juvenile delinquency systems. On the other hand, at times, children are "adultified," i.e., viewed as miniature adults with similar abilities, obligations, and responsibilities. This contrasting view is exemplified when the government transfers juveniles to adult criminal court for prosecution, rather than adjudicating the matter in juvenile delinquency court.
America's "wars" on drugs, crime, and gangs have exacerbated this tension-filled relationship. The government has waged these "wars" to protect the public's safety from these perceived threats. To that end, it exercises its police power to adopt aggressive strategies and tactics to investigate and prosecute crimes. However, these strategies frequently clash with the government's long-standing commitment to protect children, pursuant to parens patriae.
One example of this clash is the government's use of juvenile informants in the investigation and prosecution of criminal and juvenile delinquency cases. (3) Within the criminal justice system, a vibrant snitching institution operates to assist the government in its "wars" on drugs, crime, and gangs. (4) Alongside adults, government officials enlist and conscript juveniles--some of whom are engaged in criminal activities and some who are not--to act as informants. AS a result of their informant activities, some children have been killed. (5) Others have suffered verbal and other non-physical intimidation or have been shunned by their peers. (6) Even children who were simply suspected of being snitches have been killed. (7)
The use of children as informants has been largely unacknowledged. Regulations of informants generally fail to distinguish between adults and juveniles. Similarly, legal scholarship discussing the use of informants primarily focuses on adult informants. (8) Yet, the concerns respecting the use of juvenile informants are different from those of adult informants and require special attention. Because of their immaturity, underage informants raise special physical, psychological, ethical, and familial concerns.
Wallace's story, though fictional, dramatically demonstrates both the tension between parens patriae and police power, and the need for stricter regulation of juvenile informants. Wallace "worked" on the "front lines" in the streets of one of America's poor inner-cities rife with drugs and violence. He was orphaned, truant, and homeless. The government stood to gain substantially from his information and testimony. It would have closed a homicide case and obtained the arrest of several serious criminals long sought by the government. Wallace's motivations for informing were complex. He at once desired to get out of a criminal lifestyle, make amends for his involvement in a murder, and obtain criminal leniency. Without parents and legal counsel, however, his agreement to inform and actions thereafter were unguided and misguided. Ultimately, his decision cost him his street "family" and his life.
The police and prosecutor in Wallace's case, however, gave little weight to the particular vulnerabilities of child informants in comparison to their desire to investigate and prosecute crimes. In assuming a war-like approach to solving domestic social problems, the government abdicated its protector function vis-a-vis children and instead embraced a bunker, ends-justify-the-means mentality. (9) To the government, Wallace was simply yet another crime-fighting weapon, and the government paid little regard to the harms such use posed to his life. (10)
This Article contends that governments should temper the use of juveniles as informants by reliance on the doctrine of parens patriae. Doing so requires consideration of the harms that juveniles experience as a result of informing, rather than focusing solely on winning the "wars" for public safety. Consideration of the harms in turn dictates that governments adopt an extremely conservative approach to the use of juveniles as informants, thereby severely limiting and closely regulating their use.
This Article is divided into three sections. Part I describes the current practice of using children as informants. More particularly, it defines and exemplifies "child informant," describes the government's recruitment techniques, and discusses the prevalence of child informants. This Part also discusses the de minimis level of regulation of child informants.
Part II describes the tension between the government's dual responsibilities to protect child informants and promote public safety. First, the Part begins with a discussion of how the parens patriae doctrine and general police powers have traditionally been used to protect children. Second, it explains the government's war-like approach to public safety challenges, exemplified by the "wars" on drugs, crime, and gangs. Third, it analyzes the government-proffered justifications for using underage informants to reveal the tension between the use of child informants and the government's responsibility to protect children. Finally, it utilizes a child-centered perspective to posit harms to juveniles resulting from their use as informants. This Part contends that these harms weigh in favor of law enforcement agents and prosecutors adopting conservative policies regarding their use of child informants.
Part III offers several alternative measures to ensure that children are only used as informants in limited and reviewable circumstances. First, it proposes a categorical age-based restriction limiting the use of underage informants. Second, it suggests requiring judicial pre-approval before a child may act as an informant and sketches out a procedural mechanism and alternative standards for approval, i.e., whether it is in the best interests of the child to act as an informant or whether a "mature minor" has given informed consent. Ultimately, the Article concludes that governments should adopt the best interests of the child standard. The Article closes by positing some ramifications of the limited use of children as informants.
I. OPERATING OFF THE RADAR: THE REGIMENT OF JUVENILE INFORMANTS
A. Mission Defined
An "informant" or "snitch" is any individual--whether a criminal, witness, victim, or tipster--who provides information to government authorities for use in investigating and prosecuting the illicit activities of another. (11) The subject or target of information may be anyone, including, but not limited to, family members, friends, acquaintances, co-conspirators, or unrelated individuals. (12) A "child informant" or "juvenile informant" is simply an informant who is under the age of eighteen years. (13)
The government relies on child informants in an assortment of criminal cases ranging from the less serious to more serious. On one end of the spectrum, since the 1980s, children have been used to identify retailers who sell alcohol to minors. (14) 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 investigation and prosecution of tobacco cases. (15)
At the other end of the spectrum, government officials use juvenile informants to investigate and prosecute more serious matters including gun, drug, burglary, sex abuse, and violent crime cases. (16) For example, a South Carolina law enforcement official publicly acknowledged creating a program--"Gunstoppers"--designed to induce children to provide tips about individuals possessing guns and encouraged other law enforcement agencies to do the same. (17) In Kentucky, a sixteen-year-old sued the City of Covington alleging that law enforcement officers forced him to engage in undercover acts of homosexual solicitation in furtherance of a law enforcement sting operation. (18) He had been involved with drugs. (19) He alleged that he was forced to participate in the sting without parental knowledge or permission and as a result "sustained severe psychological damage." (20)
Some instances of the government using juvenile informants have had deadly results. In California, Chad MacDonald acted as an underage informant in a drug case. His mother unsuccessfully sued the City of Brea Police Department after Chad was tortured and killed by gang members upon whom he had informed. (21) Police had arrested Chad on charges of drug distribution, and he offered to provide information to "correct" his mistakes. (22) His arresting officer asked if he would identify his suppliers in exchange for dismissal of the pending charges. (23) Chad's mother learned of this agreement only after it was made and Chad had already begun to provide information. (24) Chad's mother faced a dilemma: on one hand, she was afraid that Chad would be incarcerated if he did not continue to cooperate, but she alternately feared that the individuals he informed on would seek retribution for .his betrayal. (25) Eventually, she acquiesced to the police using him as an informant, hoping that they would protect him on both accounts. (26) To have his charges dismissed, Chad provided information regarding drug dealers and helped set up "drug busts." (27) Eventually, individuals began to threaten Chad. (28) About a month later, gang members tortured and killed him. (29)
Seventeen-year-old Robbie Williamson contacted the City of Virginia Beach, Virginia, police department and volunteered to provide information regarding the illegal drug activities of others. (30) The City accepted Robbie's offer and used him as an informant without obtaining parental permission or completing a background check. Robbie committed suicide after he was threatened by the individuals upon whom he had informed. His mother filed suit against the City of Virginia Beach, alleging claims based on the City's use of Robbie as an informant. (31) The case reportedly settled. (32)
Finally, when Virginia law enforcement officers arrested sixteen-year-old Brenda Paz, she began to inform on the Latin gang Mara Salvatrucha (MS-13), which eventually led to her death. (33) Police arrested Brenda on car theft charges. (34) Despite the relatively minor nature of that crime, she was able to provide information to federal law enforcement agents and police officers from other states regarding MS-13 gang leaders and members whom she had known intimately since she was a pre-teen. (35) Slated to be a witness at a murder trial against MS-13 members, federal agents put her into the federal witness protection program. (36) She did not remain there, however, as she later rejoined her gang family. (37) After learning she had informed on them, MS-13 members killed her. (38)
Ultimately, law enforcement and prosecutors use the information provided by child informants in a number of ways. Government officials may collect the information and place it in an investigatory case file to use it passively to identify other suspects or avenues of investigation or prosecution. (39) More affirmatively, the police use the information for securing or justifying a search or arrest warrant. (40) At the extreme, a child may be expected to perform undercover activities or testify in court proceedings. (41)
B. Recruitment Efforts
Any number of concerns, working individually or collectively, may be influential in a child's agreement to inform. Children are often motivated by internal factors relating to their own criminal activity or victim-hood and external sources such as parents or law enforcement. Often their motivations are mixed and complex.
Parental input can play a factor in whether a child informs. A child who is accused of criminal activity may consult a parent when making decisions about a case, particularly whether to talk to the police. (42) Such consultation offers parents the opportunity to approve a child's individual desire to inform and encourage or instruct a hesitant or unwilling child to cooperate. (43) Some parents, however, will counsel their child not to inform. (44)
Pressure from law enforcement is a significant factor in a child's decision to become an informant. Criminologist Dr. Mary Dodge collected qualitative social science data suggesting that the government's persuasive efforts can be characterized as undue influence, because of either the particular vulnerabilities of children or the nature of the efforts to convince children to inform. (45) A study by law professor Professor Barry Feld provides greater insight into the desire of law enforcement officials to convince juveniles facing criminal prosecution to act as informants and the lengths to which the officers will go to accomplish their goal. In 2006, Feld published a quantitative and qualitative study regarding routine law enforcement interrogation of juveniles sixteen years of age or older in Minnesota. (46) The juveniles had been charged with felony offenses and had waived their Miranda rights. (47) The aim of Feld's research was to produce empirical data regarding juvenile competence during police interrogations. (48) The study also revealed, however, law enforcement efforts to recruit juvenile informants. In about thirteen percent of the interrogations reviewed, juveniles were reticent about, though apparently not adamantly against, informing on co-offenders. (49) For those juveniles who exhibited a potential willingness to provide information, the interrogator engaged in a variety of tactics designed to overcome the hesitation.
Feld's study revealed that various types of reward and punishment were used to induce children to become informants. To reward potential juvenile informants, in one case, officers assured juvenile suspects that prosecutors and judges would react favorably if they cooperated and helped recover evidence. (50) In another case, law enforcement offered an immediate release from pre-trial detention if the juvenile assisted. (51) To punish a reticent juvenile informant, law enforcement threatened the juvenile with adult criminal charges. (52) Even more extreme is the case involving an officer who threatened to detain the juvenile's sister if he did not cooperate with the investigation. (53) Law enforcement pressure may be exerted in a more benign way. For example, in response to a juvenile's hesitation about providing information, an interrogator in Feld's study advised the juvenile that friendship should be put aside, that the juvenile had to take care of himself first because no one else would, and that failing to cooperate could result in more severe consequences for the juvenile. (54)
The government also incentivizes children to inform by offering monetary payment for their information. (55) For example, in 1996, Reuben Greenberg, then Chief of Police of the Charleston South Carolina Police Department, spoke publicly regarding his agency's efforts to reduce crime committed by and against juveniles. (56) Among other programs, he described the Gunstoppers Program. Gunstoppers was a 'gun reporting program that provided one hundred dollars to individuals who provided law enforcement with detailed information regarding individuals carrying guns--a so-called "hot tip." (57) Greenberg admitted the program was aimed at juveniles, whom he deemed "the greatest snitches in the world.... [Y]ou tell them they are going to get a hundred bucks, then they become super snitches with respect to other kids having guns and so forth." (58) The juveniles wanted immediate compensation, so law enforcement developed a system to compensate them the same day they reported a hot tip. (59)
Intangible personal desires can also factor into a child's reason for informing. Children are more likely than adults to engage in thrill-seeking behaviors, owing to decreased risk aversion. (60) Such thrill-seeking may explain why juvenile informants who are not involved in criminal activity volunteer to act as informants. (61) Moreover, redemption and the desire to change one's life may play a role in the decision. Thus, for example, the government suggested that Brenda Paz willingly informed in order to turn her life around and leave MS-13. (62) A juvenile may also inform to avoid law enforcement retribution--that is, to keep law enforcement from harassing him either at the time or in the future. (63) Finally, some in particular the tipster, victim, or witness child informant--may inform out of a sense of civic responsibility or personal safety.
C. Deployment Levels
The extent to which the government uses juvenile informants is difficult to quantify for a number of reasons. First, law enforcement and prosecutorial communities disagree over whether the practice even occurs, and if so, with what frequency. Some law enforcement and prosecutorial agencies do not admit the practice occurs at all. (64) Others say that the use of children is "negligible." (65) In contrast, others willingly acknowledge that their use is "frequent" or "higher than many think." (66)
More importantly, no government agency tracks the use of juvenile informants. (67) Even if agencies tracked their use, however, government authorities may distort or conceal the number. (68) The fact that law enforcement and prosecutors inconsistently define the term informant contributes to minimization. Some law enforcement officers distinguish the informal use of juveniles for information gathering from the formal use of them as informants by characterizing some juvenile informants as "friends" who voluntarily give information. (69) In exchange, law enforcement may do "friendly favors" for the child (e.g., job placement, buy diapers, find babysitters). (70) Confidentiality also imposes barriers to tracking the government's use of informants. Police are in general loathe to reveal the use of informants, preferring to keep their use a secret. (71) Moreover, the use of child informants may remain concealed within the realm of highly discretionary and confidential juvenile court filings and proceedings that cannot be studied without special dispensation. (72)
Despite the discrepant information regarding the scope of use of child informants, the practice exists in more than just a few, isolated instances. As early as the late 1960s, appellate courts in criminal cases have characterized children as informants. (73) Since that time, opinions referencing juvenile informants can readily be found. (74) Additionally, news reports confirm that their use is more than rare. Beginning in the late 1990s and continuing today, reporters have recounted stories of juveniles who were killed for informing. (75) Finally, recent empirical studies have begun to confirm their more than infrequent use. Professor Dodge's qualitative study was directed at exploring the practice and revealed that it is occurring, although the levels may be debatable, and Professor Feld's data on police interrogation of juveniles revealed quantitatively and qualitatively that law enforcement officers interrogating juvenile suspects seek to convince the juvenile to act as an informant (i.e., "flip" the minor). (76) While Dodge's study was limited in scope and Feld's study was both limited in scope and not focused on studying juvenile informants, it is reasonable to infer from their data that the attempted and actual use of child informants is more than minimal.
The lack of collected data regarding child informants creates difficulty in determining the characteristics of underage informants. Without study, the types of cases involving and endeavors undertaken by juvenile informants cannot be known. Additionally, the demographic characteristics of the group are unclear. The lack of social science studies of juvenile informants also makes it difficult to understand the actual impact of informing on juvenile informants. Further study is needed to develop these types of information....
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