ARRESTEES AS INFORMANTS - A THIRTEENTH AMENDMENT ANALYSIS

• NCJ Number: 43223
• Journal: Stanford Law Review Volume: 29 Issue: 4 Dated: (APRIL 1977) Pages: 713-746
• Author(s): R L MISNER; J H CLOUGH
• Date Published: 1977
• Length: 34 pages
• Corporate Author: Stanford University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE LEGALITY OF DIVERTING ARRESTEES AS INFORMANTS IS EXAMINED FROM THE STANDPOINT OF THE 13TH AMENDMENT, WHICH PROHIBITS SLAVERY AND INVOLUNTARY SERVITUDE. THE ABUSE OF DISCRETION AMONG POLICE IS ALSO COVERED.

Abstract

THE PRACTICE OF DIVERTING ARRESTEES AS IMFORMANTS GIVES THEM THE OPPORTUNITY TO BYPASS THE CRIMINAL JUSTICE SYSTEM IN RETURN FOR THEIR AGREEMENT TO DO UNDERCOVER WORK FOR THE POLICE. LITTLE OR NO SYSTEMATIC CHECK IS MADE ON THE OFFICIAL'S EXERCISE OF DISCRETION TO DIVERT THE ARRESTEE, AND OFTEN THE 'RECRUITMENT' OF INFORMANTS SUGGESTS ABUSE OF DISCRETION OR COERCION. UNDER A 13TH AMENDMENT ANALYSIS, PARTICULAR ABUSES CAN BE IDENTIFIED AND JUDGED BY APPLYING FIXED LEGAL STANDARDS. THE ANALYSIS ALSO ADDRESSES THE UNDERLYING ABUSE PRESENT WHEN ARRESTEES ARE HELD IN INVOLUNTARY SERVITUDE INFORCED WITH THREATS OF PROSECUTION AND POSSIBLE INCARCERATION. A HISTORICAL OVERVIEW OF THE 13TH AMENDMENT AND THE LEGISLATION PASSED BY CONGRESS TO IMPLEMENT IT ARE DISCUSSED IN PART I OF THIS ARTICLE. PART II PRESENTS THE ELEMENTS OF A PRIMA FACIE CASE OF PEONAGE, ASCERTAINED FROM CASE LAW. THESE ELEMENTS ARE APPLIED TO THE PRACTICE OF DIVERTING ARRESTEES AS INFORMANTS IN PART III; POTENTIAL REMEDIES ARE DISCUSSED, AS WELL AS THE IMPLICATIONS OF THIS 13TH AMENDMENT ANALYSIS FOR THE CONTEMPORARY PRACTICES OF PRETRIAL DIVERSION, THE USE OF INFORMANTS, AND PLEA BARGAINING. IT IS CONCLUDED THAT DIVERSION PRACTICES WHICH ALLOW AN ARRESTEE TO AVOID PROSECUTION BY BECOMING AN INFORMANT ARE OF SMALL BENEFIT TO THE ARRESTEE AND SOCIETY; AN UNDERCOVER INFORMANT IN NARCOTICS IS OFTEN SUBJECTED TO PHYSICAL DANGER AND MAY BE TEMPTED BY FURTHER EXPOSURE TO DRUGS. FURTHERMORE, THIS PRACTICE IS VIEWED AS AN ABUSE OF EXECUTIVE DISCRETION THAT 'FOSTERS A SYSTEM OF PEONAGE OPPRESSIVE TO THE ARRESTEE.' THE PEONAGE ANALYSIS OUTLINES A LIMITATION ON THE GENERAL PRACTICE OF PRETRIAL DIVERSION AND THE PARTICULAR DIVERSION PRACTICE INVOLVING ARRESTEES AS INFORMANTS. A SERIOUS LOOK AT SOCIETAL INTEREST OF FREEDOM FROM PEONAGE AND THE LAW ENFORCEMENT INTEREST OF CONVENIENCE IS URGED.