The War on Confidential Informants

Anthony Papa knows the burn of betrayal.

Today he’s an accomplished man—a published author and staff member at the Drug Policy Alliance—but in the mid-’80s, his life wasn’t in such a bright place.

In 1985, Papa was living in the Bronx with his wife and daughter. He was self-employed, installing car alarms. He was an avid bowler, but also an avid gambler. He went to bowling alleys and bet on other bowlers, and sometimes he was up, but at the start of 1985, he was down. Money was tight and his wife gave him an ultimatum; make rent or get out. One of his bowling buddies in Westchester stepped in, seemingly to save the day.

“He asked me if I wanted to make a fast buck. All I had to do was deliver an envelope to Mount Vernon.”

After some nerves and reconsiderations, Papa eventually went through and delivered the goods to a mysterious man in a tow truck.

“I walked into a bust,” he said. The bowling buddy who’d “helped” him was already in legal hot water himself, “so the more people he got involved, the less time he got,” Papa recalled.

“He was setting up all his friends, people who weren’t even doing drugs.” Papa had dabbled in drugs, but he was by no means a drug dealer—just a desperate man who was out of options.

After his arrest, Papa was offered the chance to do what his bowling buddy did and become a confidential informant in exchange for a reduced sentence.

“I wouldn’t do it,” he said. “I knew at that point that I would just get deeper in the hole.” Instead, he took his case to trial and ended up with two sentences of 15 to life under New York’s notorious Rockefeller drug laws. He served 12 years before he was granted clemency by Gov. George Pataki.

Although today he’s doing well, the events that led to Papa’s arrest are not uncommon. Every day, confidential police informants are used to make drug busts. Sometimes they’re snagging bigger dealers, but sometimes—as in Papa’s case—they’re setting up bit players for big arrests.

The latter scenario is something that 60 Minutes focused on in a December 2015 segment with Lesley Stahl. The in-depth investigation looked at some of the tragic outcomes when the use of confidential informants doesn’t go as planned.

The show highlighted the cases of Andrew Sadek and Rachel Hoffman, both college students who were arrested with small amounts of drugs and pressured to work as confidential informants. Both ended up dead. Sadek was missing for months before he was found near a river, shot in the head. His backpack was weighted down with rocks. Hoffman was shot five times and dumped in a ditch. Both were college students with bright futures.

Although 60 Minutes used examples like those to outline the problematic nature of using confidential informants, the show didn’t include stories like Papa’s. To be more specific, the youth profiled in the show were all white.

Getting data about the demographics of confidential informants is difficult, to say the least. In fact, it’s hard to even get a good handle on how many confidential informants are used every year.

“By their nature, you’re not supposed to know who they are, so it’s very hard to say how much they’re actually used,” said Asha Bandele of the Drug Policy Alliance.

Nsombi Lambright, previous executive director of the ACLU of Mississippi and current executive director of One Voice, said that anecdotal evidence suggests that a lot of confidential informants are minorities.

“Overwhelmingly we’ve seen that the use of confidential informants is in poor and African American communities. That’s not to say that it doesn’t happen in other communities, but that is where we’ve seen the overwhelming use just because of the simplicity of entering into certain communities,” she said.

Typically, more privileged communities are more likely to have access to legal resources that prevent them from seriously considering offers to work as a confidential informant.

“I think that reason would have us extrapolate that people who are used as confidential informants are the most vulnerable—if you have a good lawyer, you’re probably not going to be a confidential informant,” said Bandele. “It’s very hard to quantify that or try to, but it’s not an unfair leap to think that somebody with wherewithal doesn’t need to be put in a position where they need to put their life at risk—and that’s about race and class.”

By way of example, Bandele pointed to the story of Shelley “Treasure” Hilliard. Hilliard, a black trans teen, was collared by Detroit police for half an ounce of marijuana. As a trans woman, the prospect of doing time and being housed in a men’s facility was understandably terrifying. So Hilliard agreed to become a confidential informant, hoping—like Hoffman and Sadek—to avoid time behind bars. But things went wrong when police leaked her name, and soon the teen went missing.

In November 2011, her burned torso was identified by investigators. “She was burned and hacked up and spread across the city,” Bandele lamented.

“She was trans, she was poor, she was black—it was a perfect storm of stigma and prejudice. It was a conflation of all these things that put her in a vulnerable position.”

The thing is, even if everything had worked out well, even if police hadn’t leaked her name, there’s still cause for concern on at least a few levels. For one, not everyone who works as a confidential informant actually manages to avoid prison time.

Papa said that the man who set him up ended up serving three years. Predictably, if someone is known as a confidential informant, prison becomes a lot more difficult.

“Once you get that label as a snitch, you’re dead,” he said. “You go to prison and they find out, you’re finished. You have to check into protective custody or always look over your shoulder. There’s nowhere to run in prison.” Protective custody typically means 22 to 23 hours a day in solitary confinement, so it may be safer than general population, but it’s mental torture.

Sometimes, confidential informants end up doing time because they don’t come up with enough information or don’t participate in enough busts. Other times, Lambright said, they get arrested on completely separate charges or the prosecuting attorney doesn’t honor the agreement. Even in a best-case scenario, where no names are leaked and no one is injured, confidential informants don’t necessarily get off scot-free.

A second problem with confidential informants is reliability.

“If somebody is facing time themselves, then of course they’ll do anything to get a reduction in time,” said Lambright. That was a problem the New Jersey ACLU outlined in a 2011 report examining the use of confidential informants in the Garden State.

“Police survey responses and community interviews indicate that police sometimes take CIs at their word without first carefully and independently corroborating the veracity of their statements before attempting to make an arrest,” the report notes. “Incentives offered to CIs, including leniency in their own criminal cases, increase the risk that CIs will provide unreliable information. The prevalent and repeated use of drug-addicted civilians as CIs increases the risk that the information they provide may be unreliable.”

According to the ACLU, unreliable testimony from informants is “one of the largest sources of wrongful convictions in the country.”

Part of the reason this happens is simply a lack of oversight. As the 60 Minutes segment pointed out, there’s typically no real training for the informants who are essentially being sent out to do police work.

As the New Jersey ACLU outlined, informants in the Garden State are often not properly registered and agreements are not set out in writing as they should be, as per a mandate from the state’s Attorney General. In fact, the report found that 44.6% of law enforcement personnel surveyed did not even know the Attorney General had a policy regarding the use of confidential informants.

When the U.S. Government Accountability Office issued a report on confidential informants in September 2015, they found a similar lack of oversight and a lack of sufficient policies for the federal agencies examined.

Although the use of confidential informants presents clear problems, Lambright said that there aren’t a lot of groups specifically focusing on activism around the issue of confidential informants, even though some advocacy organizations make it part of a drug reform platform.

One organization that has been very clear about its stance on confidential informants is the ACLU. On its website, the organization outlines some changes that could make the use of informants less problematic. Those changes include everything from requiring corroboration to improve informant reliability, broadening data collection to better evaluate the efficacy of using informants, and limiting the use of informants to serious crimes instead of non-violent drug offenses.

For Papa, that’s still not enough.

“It should be banned,” he said. “People should not be threatened or deals made based on putting other people in dangerous situations.”

“To police, it’s acceptable when really it’s not.”

This story originally appeared on The Fix.

How Medical Marijuana Users Are Treated Like Criminals

Steve Green has epilepsy. His wife, Maria, has multiple sclerosis. Since 2011, they’ve been growing cannabis for medical use.

Everything they do is perfectly legal under state law in Michigan, where the couple resides. Maria is a registered caregiver—meaning that she’s allowed to grow 12 plants per patient—and both are qualifying patients.

Nonetheless, in 2013 Children’s Protective Services came in and removed the couple’s six-month-old unweaned infant, Bree. According to Steve, “Bree was ordered removed from our home because the judge said it was an inherently dangerous situation, that people could break in to steal the marijuana and steal the baby.”

The removal came despite the fact that the Michigan Medical Marijuana Act notes, “A person shall not be denied custody or visitation of a minor for acting in accordance with this act, unless the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.”

Sara Arnold, the director and co-founder of the Massachusetts-based Family Law and Cannabis Alliance (FLCA), a national nonprofit organization founded in 2013 and dedicated to advocating for medical marijuana parents, said that the Greens’ story is not unique. “It is extremely common,” she said.

She knows a thing or two about it because in addition to being an advocate and policy expert, Arnold is a medical marijuana parent herself.

“I was investigated by CPS for neglect three times for my medical marijuana use,” Arnold said. “My story is common; I was investigated after the birth of my first child after self-disclosure to my prenatal care provider and twice more from mandated reporters.” By law, people in certain professions—or in some states, all citizens—are mandated to report potential or actual neglect and abuse, which specifically includes drug use. She continued, “One of the mandated reporters had never met my child nor seen me parent her and had only read ‘medical marijuana’ in my medical records mentioned by a (supportive) physician; and the other did not want to make the report but believed they were mandated to do so.

“The outcome of these investigations resulted in the allegations not being substantiated and no further action taken by CPS, but investigation by CPS is still an intrusive, traumatic experience for any family—much less three times for the same thing. It is also a huge waste of limited CPS resources that is taking case workers away from real child neglect and abuse.”

Like Arnold, the Greens eventually got their daughter back—but only after six weeks of expensive legal wrangling.

Although the above cases were in Massachusetts and Michigan, those states aren’t cherry-picked examples. Arnold explained that similar situations happen everywhere: “This is a problem throughout the country. Obviously some states are worse than others (like Texas and Florida) but you might find it surprising that even states with mature medical marijuana programs still investigate their patients who are also parents. Even CPS in medical and legal Colorado still regularly and consistently investigate medical marijuana patients.”

Heather Thompson, a molecular biology PhD who works as the deputy director of a nonprofit known as The Elephant Circle, said that often CPS might get involved before the child is even born. Because the Denver-based organization advocates for new mothers, Thompson has become acquainted with the surprising ways in which legalization has played out in Colorado. Instead of creating a more permissive environment, Thompson said that legalization has created among medical professionals a heightened awareness of cannabis and thus some hospitals are now more likely to drug test newborn babies. She said, “That’s where federal law trumps state law—because it is Schedule 1 it is legal for someone at the hospital to test a baby for THC without the parents’ consent or knowledge. Then if they test positive, because it’s for a Schedule 1, then they have to involve CPS.”

She continued, “If a baby tests positive, it’s automatically a charge of neglect and abuse. There is no evidence to say that drug use equals abuse, but because of the climate in Colorado there’s a very punitive attitude toward parents in general who use marijuana.”

Thompson is not the only advocate quick to note the problems caused by conflicting federal and state laws; it’s something Jennifer Ani is very familiar with, too. Ani is a California-based attorney and child welfare specialist who handles cases where legal medical marijuana users and growers find themselves running afoul of CPS.

To some extent, funding is the source of the problem. The Child Abuse Prevention and Treatment Act (CAPTA), was originally enacted in 1974 as a federal law to allocate CPS funding to states that meet certain federal standards. Ani said, “That’s where marijuana comes in. How do you reconcile that with medical marijuana laws?”

After a 2003 revision, CAPTA now requires states to have policies in place to report and address situations in which infants are born “affected” by illegal substance abuse. That can be problematic both because cannabis is still an illegal substance on the federal level and because the line between use and abuse can be unclear.

Ani said that, once the child is born, “Just the fact that a parent is breaking a federal law is not enough to remove a child [in California]. Regardless of the substance, in California, a parent can use any substance they want to as long as they’re not abusing it and that abuse does not affect the child.” Of course, whatever the law says, Ani said that the children of medical marijuana users are still being removed on a regular basis.

“It’s a problem,” Ani said, “because there’s so much ignorance as to the fact that it’s not harmful. Not only is it not harmful but it does not cause serious physical harm, as the law requires.”

In fact, according to Thompson, existing literature doesn’t even support the idea that marijuana use is harmful during pregnancy: “There has been research on pregnancy and marijuana since 1982 and Canada has been doing it since 1978, and there are very few clinical effects of marijuana. It does not seem to affect growth. If you take the literature as a whole, it does not seem to affect babies negatively in a way that can be documented.”

In a sense, Thompson said, it’s like the crack-baby myths of the 1980s and 1990s. The crack-baby myth—the belief that crack cocaine use during pregnancy would cause major damage to the fetus—grew out of a lack of well-designed studies and thus a lack of understanding. Now, medical marijuana users are facing a similar lack of understanding.

As Ani put it, “Families are being separated because of idiocy and incompetence and a failure to understand cannabis.”

As of now, some states—like Michigan—have language that should theoretically protect medical marijuana parents. Unfortunately, it doesn’t quite work out that way. As cited above, the law says that medical marijuana should only affect custody if “the person’s behavior is such that it creates an unreasonable danger to the minor that can be clearly articulated and substantiated.” However, Arnold explained, “There is no definition of ‘unreasonable danger’ or ‘clearly articulated and substantiated.’ What this has often been interpreted to mean (including in Michigan) is that a) investigation is required of any parent found to use marijuana to ensure that there is no reasonable danger and b) that it can be widely subjective, to the point where the marijuana use itself…can simply be a sign of ‘unreasonable danger.’”

Despite the struggles medical marijuana parents are facing, Arnold remains optimistic. She explained that FLCA offers model language for parent-protective initiatives, such as one that has already been proposed in Massachusetts.

“Marijuana reformers,” she said, “are waking up to the fact that parental rights for patients matter, and social workers are waking up to the fact that it shouldn’t be their job to continue the war on marijuana to the detriment of children and families.”

This story originally appeared on The Fix.

With Loved Ones in Prison, Women Become Leaders in the Fight Against Solitary Confinement in New York

Jessica Casanova speaks in support of the HALT Solitary Confinement Act at a press conference in 2014.

Jessica Casanova’s nephew wrote her a letter: “I’m here in a steel coffin. I’m breathing but I’m dead.” Casanova recounted, “I didn’t know what that meant so I got on a bus and I found out.”

That was in 2012, and three years later, she’s still finding out. As it turned out, Casanova’s nephew, Juan, was in solitary confinement. He was spending 23 hours a day alone in a cell and deteriorating quickly.

Juan had entered the New York State prison system as a teenager with mental health issues. Casanova said, “He suffered from antisocial personality, borderline personality, severe depression, and addiction.”

His first trip to solitary was in 2001, for allegedly smoking a joint. Although Juan was only isolation for a matter of months, Casanova said, “He’s never been the same after that.” While his first stay was brief, at this point the 33-year-old has now spent a total of about 10 years in solitary. Casanova went on to explain that her nephew now suffers from extreme bouts of depression, paranoia, and mood swings. She added, “Sometimes in the letters it seems like he might be hallucinating.”

“Seeing someone in solitary confinement,” Casanova said, “is like you’re watching them die right in front of your eyes. … I have never in my life experienced another human being being reduced to nothingness.” She added, “I just don’t understand how this can happen in the world.”

Although her nephew’s experience opened Casanova’s eyes, the 43-years-old East Harlem resident is not the only one coming to such realizations. Nationwide, there are at least 80,000 people in solitary confinement on any given day – and most have families who watch them suffer.

Leah Gitter, a retired New York City schoolteacher, is another of those suffering relatives. Her godson, Robert, has spent time in solitary both in Attica and Green Haven, maximum security prisons in New York State.

Gitter said that, during the time Robert was in solitary confinement, “I saw him becoming more unstable and more isolated and sicker. It was like he was withdrawing.” She added, “You get into this mindset where you can’t function because of all that isolation and he wasn’t well to begin with.”

As is perhaps evident from Casanova’s and Gitter’s stories, despite the documented mental health impacts, individuals with existing mental health problems are routinely placed in solitary confinement, a practice which may be counterproductive to any perceived public safety goals. Gitter observed, “I don’t know who benefits from punishing people like that.”

Robin Goods can relate. Her son, George, has spent more than a decade in solitary confinement in California. She said, “I have been visiting with my son George E. Jacobs for the past 10 years behind a glass window. When I look into his eyes I can see the progression of the effects of torture. The first year George had a distance look in his eyes. After the second year in the SHU he had a vague look in his eyes. Now after ten years in the SHU, George has a hollow empty look in his eyes.  I am witnessing my son being slowly and deliberately tortured to the point of … devastating mental health deterioration.”

Initially, her son was isolated for a small infraction – Goods said she was told that he refused to take out his shoe laces before a visit. He was sentenced to two years in solitary, but prison officials gradually extended his stay longer and longer. She said, “When he goes for the review they say it’s small infractions like refusing to eat, sharing food.” Recently, George was let out of SHU, but instead of being moved to general population, he was just placed in another type of solitary confinement know as Administrative Segregation.

Goods said, “The deterioration is so profound that it almost affects me. You feel like you want to scream at the top of your lungs, because how can you help? What can you do?” Answering her own question, she continued, “I felt so depressed and helpless and anything I tried wasn’t going anywhere. Then I became angry and decided to stand back up and fight.”

That urge to fight is something Goods has in common with Casanova and Gitter. As a result of their family connections, all three women have become crusaders against solitary confinement.

Gitter said that, knowing about the conditions of her godson’s confinement, “I was so frustrated. This was the only way I could survive — to think that I could do something, to save his life.” She became active in Mental Health Alternatives to Solitary Confinement (MHASC) and “fought like hell” to get the SHU Exclusion Law passed in 2008.  The law is meant to bar most people with serious mental illness from being placed in isolation in New York’s state prisons. Gitter said, “We had press conferences and lobby days. We were relentless, even though it took eight years – a human rights bill [took] eight years to get passed.”

Jennifer Parish, the director of criminal justice advocacy at the Urban Justice Center’s Mental Health Project, said, “Leah in some way is the godmother of the movement. She’s been a force for speaking to policy makers at all different levels … She had really done so much to gather people around addressing the problem of people with mental illness in our prison system and in solitary confinement.”

While Gitter has been involved in solitary confinement activism for over a decade, Casanova got into it more recently. In 2013, she joined the New York Campaign for Alternatives to Isolated Confinement (CAIC) and in 2014 spoke at the first press conference announcing the Humane Alternatives to Long-Term (HALT) Solitary Confinement Act. The HALT Act, which is graduallygaining momentum in both the Senate and the House, would ban solitary confinement in New York’s prisons and jails to 15 days, the limit suggested by the UN’s Special Rapporteur on Torture. Individuals requiring more secure housing over the long term would be placed in new Residential Rehabilitation Units with increased therapy and programming.

Parish said of Casanova, “She’s a tremendous advocate. When she talks about what her nephew has gone through it’s just incredibly powerful.”

Though Goods lives in New Jersey, she’s also been active in CAIC, a New York-based group. Parish said, “Robin has a leadership role within CAIC she’s one of the co-chairs of the legislative committee. She’s been part of taking trips to communities upstate to help form branches of CAIC. She’s done presentations upstate. Her son is in California so the fact that she’s working so strongly here is amazing.”

Goods said that, if there’s one thing she’s learned through her activism, it’s that if you’re a family member of someone in solitary, “You are the extended voice on the outside and you should use it as loudly as you can. There’s nothing worse going to happen than what’s already happened.”

Although Casanova, Gitter, and Goods are all important figures in the movement against solitary, they aren’t the only ones – there are wives, girlfriends, parents, siblings, and children scattered throughout activist groups.

“I think,” Parish said, “one of the most important roles that family members play in the movement is reminding everyone who’s involved about the urgency of changing these policies. Because every day their family members are facing solitary or have the potential to face it, and it reminds us that this is not an abstract problem. I think that for people are in the movement it can sometimes be far away. Prisons are closed institutions. But the families constantly keep the fire burning in all of us to make the changes.”

Note: This article, by Keri Blakinger, originally appeared on Solitary Watch.

Ban the Box: When Do You Admit That You’re a Felon

There are around 70 million Americans with an arrest history or a criminal record. For that portion of the population—one in three adults, according to the National Employment Law Project—getting a job can be tough.

In some cases, private employers, such as Target, Home Depot, and Walmart, have chosen to make it a bit easier by not asking questions about criminal background on their applications. In some cases, cities, counties, and states have actually passed legislation prohibiting such questions. These so-called “Ban the Box” laws don’t mandate that employers must hire felons. They simply require that criminal background inquiries occur later in the hiring process, typically after an in-person interview or conditional offer of employment.Ban the Box

Among the county’s major employers, Ithaca College, Borg Warner, and Cayuga Medical Center all either declined to comment or failed to respond to questions about their policies regarding the hire of individuals with criminal backgrounds. Cornell University, Tompkins County, and the City of Ithaca all said that they do inquire about criminal background, but that it is not an automatic bar to employment.

Although neither Tompkins County nor any of its included municipalities has banned the box yet, nearby Syracuse has. Alan Rosenthal, an attorney with the Center for Community Alternatives in Syracuse, helped see that law through. However, the Syracuse law does not apply to all employers, but only to the city and its contractors. He said, “As we’ve seen [Ban the Box] implemented around the country there have been basically three versions. The first is the one that is the most narrow, the one in which the governmental entity—city, county, or state—bans the box for government employees only. The second is the one which applies to government entities and any business that contracts with government entities. Then the third, the one that is the broadest and gives the best of protections, takes the two that I’ve already mentioned and adds to it any private business within the locality.”

While none of the Tompkins County businesses interviewed for this article were willing to comment on Ban the Box, in some areas business interests have vocally opposed it. In an article for Cleveland.com, Director of Labor and Human Resources Policy for the Ohio Chamber of Commerce Sean Chichelli wrote, “Businesses ask candidates about their criminal histories on job applications in order to reduce liability and costs. Preventing them from doing so at the point of application only delays the necessary information they need right away.” Typically, Ban the Box advocates argue that delaying those questions allows applicants to be judged on their skills and experience rather than being summarily rejected for their pasts.

Rosenthal said that those with criminal backgrounds are not the only ones to benefit from the passage of Ban the Box legislation: “The benefits that flow from that are that if a person [with a criminal background] gets a job they now are a taxpayer, so there’s a benefit to the municipal entity in which they live. Now they’re paying taxes, they’re no longer in need of public assistance. There is the additional benefit that employment reduces the recidivism rate.” He added, “The Koch brothers have banned the box. Liberals shouldn’t be running away from this.”

Mayor Svante Myrick said that the city has talked about Ban the Box legislation in the past, but the matter never came to a vote. However, he voiced his support for the concept, saying, “If we deny people meaningful employment, we’re all but guaranteeing that they’ll go back to prison.”

One group of Cornell students, the Prison Reform and Education Project (PREP), has been actively raising awareness on the issue in recent months and one of the group’s leaders, Garrison Lovely, said that PREP has plans to address the Common Council about it during their regular May meeting. Lovely said, “We believe if you are sentenced and serve your time, you should not be punished repeatedly. It contributes to high recidivism.”

Legislator Leslyn McBean-Clairborne (D-Ithaca) said that, like the city, the county has briefly talked about Ban the Box legislation, but she did not recall where the conversation ended.

Legislator Dan Klein (D-Danby) said, “I think we should give serious consideration to this idea. The number of people in prison, and how they integrate back into society when they are out, is an issue that affects everyone. Ban the Box legislation could help with this problem without causing any difficulties for employers or restricting their rights.”

On the other side of the aisle, Legislator Dave McKenna (R-Newfield) said, “I’m not totally in favor of it, but I don’t know enough yet.”

Paula Ioanide, an Ithaca College professor who has been active regarding issues of incarceration and race, urged action on the issue. She said, “I keep wanting to hold Tompkins County accountable to their supposed promise to be at the forefront of alternatives to incarceration, and I think this county’s openness to reentry into formal labor markets would be a huge gesture in that direction. Less talk, more action.”

This article was originally published on ithaca.com. Photo and story by Keri Blakinger.