By Michael L. Rich | 61 Am. U. L. Rev. 1433 (2012)
Informants are valued law enforcement tools, and active criminal informants—criminals who maintain their illicit connections and feed evidence to the police in exchange for leniency—are the most prized of all. Yet society does little to protect active criminal informants from the substantial risks inherent in their recruitment and cooperation. As I have explored elsewhere, society’s apathy toward these informants is a result of distaste with their disloyalty and a concern that protecting them will undermine law enforcement effectiveness. This Article takes a different tack, however, building on existing scholarship on vulnerability and paternalism to argue that society has a duty to protect some vulnerable informant interests. In particular, I assess informant vulnerabilities against accepted societal norms to determine which informants deserve greatest protection and balance informant autonomy interests against informant interests in avoiding harm.
Against this backdrop, I propose safeguards to protect the vulnerable safety and autonomy interests of active criminal informants that most deserve society’s protection while minimally interfering with law enforcement effectiveness. The proposals include : requiring court approval for the use of particularly vulnerable active informants and prosecutorial consent for the use of all others; providing training for informants and law enforcement agents in minimizing the risks of harm from cooperation; and folding informants into existing workers’ compensation schemes.