Informant deals are supposed to offer people a way out of criminal charges, but in practice these “deals” often look more like coercion. On a recent episode of Hi-Phi Nation, Barry Lam spoke to Nick Taiber, former City Council member in Cedar Falls, Iowa, about becoming an undercover drug informant when he was a teenager, and to Luke Hunt, an FBI special agent–turned–political philosopher who argues that informant deals are exploitative and contrary to the rule of law. An excerpt of the episode, condensed and edited for clarity, is transcribed below.
Nick Taiber: The event happened on July 3. We were at a house party, and leaving the house party with another person, I was obviously intoxicated and got into an accident. I was driving and probably didn’t get more than a half a mile away from the house and turned blindly into a tree. The license plate was OK, but the car was totaled. It was me and a female. At that time, seat belts weren’t worn all too frequently, so I was thrown into the steering wheel, and she was thrown into the dash, sadly. I was taken away in an ambulance, and I have no recollection of that.
Barry Lam: You must have had a concussion at least, right?
Taiber: Probably did. I can remember my head was wrapped. My knee was wrapped. I don’t recall actually going home. I recall being home, waking up to my alarm clock to go into work the next day. I had opening responsibility for the sandwich shop. I think I probably rode my bike there because the car was totaled, of course. I was served probably the next day with the infraction, with notice to appear in court—it was an OWI, operating while under the influence, infraction.
So there was a meeting. I can recall it being in the basement of the old police station. You walk down the stairs, the door gets shut—it was probably a witness room of some kind. It was cold, the chair was hard, and my hands were sweaty, and I was probably shaking, my teeth were chattering. I don’t even remember if my attorney was present.
Lam: So who’s actually there?
Taiber: One of the local police officers, I’ll say Officer G, as well as another agent of some kind. I don’t know if that was a DEA agent or the county attorney.
Luke Hunt: We have informants. Some people want to work for law enforcement because they want to be a patriot. Some people think it’s cool because they’re like a spy in the movies. What’s most troubling to me is a very common scenario in which the police compel an informant to do certain operational acts because they have a tremendous amount of power and leverage over the person. Now, the classic example of that would be when police have evidence that a person has committed some kind of crime, and they say, “Hey, look, we’re willing to consider giving you a break if you’ll do this thing for us.”
Taiber: As it was presented to me, you’re faced with jail time, you’re faced with a serious fine, or you can work toward a deferred sentence where it never appears on your record—which was very important to me. It’s an honor thing. But you have to do these activities, perform these tasks.
Hunt: In many cases you might say, “That’s just a free bargain. There’s nothing wrong with that.” It’s a very libertarian approach. But in my view, this is far from a free bargain. This is a situation which would rise to what you would call in contract law an unconscionable contract.
Taiber: I was 17 years old, I was just in a pretty major accident, I’m going to college. This was a pretty stressful time. And you wanted to take the path of least resistance. From what I recall, it was a split-second decision where either you’re gonna go this way or that way through the justice system.
Hunt: When we think about valid consent, morally binding consent, in philosophy and certainly in law, we think you need to have a real choice in the matter. And in many of these cases with informants, here’s what the choice looks like: You can either engage in this very risky, very dangerous operation on our behalf—which, to be honest, could result in your death or serious injury—or you can spend a long time in prison. That’s basically the choice. So that’s one concern procedurally. The other concern is just the lack of knowledge. You have someone who is untrained in many cases, and you’re asking this person to engage in a dangerous act where there are all kinds of risks that they could have no awareness of. On the other hand, the police have this awareness, they have this knowledge, because they’ve been trained that way. They know what it’s like to go on an undercover operation, they know that things can go wrong.
Taiber: I’d never been in this kind of trouble before. Probably deserved it. But bear in mind, this is Waverly, Iowa. It’s 10,000 people. At that time, in 1995, I can say that drugs or methamphetamine—which is a common rural drug today—wasn’t even that prevalent. In Waverly, kids just aren’t exposed to this.
Lam: The term confidential informant is a real misnomer for the pervasive practice of recruiting young men and women, often underage, to engage in undercover operations on behalf of the police in the drug war. Confidential informant sounds like police are recruiting foot soldiers in the drug trade who then provide information or testimony to bust someone, but that’s not what it is at all. In all of the prominent cases that end up making the newspapers, they’re high school or college kids who are busted on something, usually drug possession, and then are threatened with long sentences unless they use their youth as a cover to infiltrate some kind of dealing ring known to the police. And if you think about it, that makes sense; law enforcement officers are older, a 17-year-old boy or girl doesn’t look like a narc. And it happens with law enforcement at all levels, from school police to local police and federal agents. In Nick Taiber’s case, there wasn’t even a drug dealing ring. The police wanted to target a local stoner.
Taiber: He was a veteran. The most peaceful, calm person. He was known as being a marijuana user—I don’t even know if there were other drugs involved—but also very friendly in the community and probably shared this with other people that were interested in partaking. Very open-minded is the best way to describe the individual.
Lam: How much did you know him at the time?
Taiber: I only knew him by association of my older brother. He was probably 20 years my senior, had one or two interactions, but it was quite known that this was his house—kind of a haven for intellectual thought, where people would maybe sit in a circle and talk about Thoreau, Jack Kerouac. Probably one of the smartest people in the community, obviously a philosopher.
Lam: In this cold room with Officer G, you were tasked with providing actionable evidence in the next two months?
Taiber: Essentially it had to be done in two months because I was going to college in Iowa City, two hours away, and they didn’t have the plan or anything of that nature. I had to set it up, I had to go collect information.
Lam: Oh, wow. So they didn’t have an operation in mind—it’s like giving you police work.
Taiber: It was to find and discover actionable evidence. I do recall putting on a wire and creating a superficial meeting through acquaintances that knew this person—none of which could know, of course, what I was trying to do. I put all of those people in that situation. That’s when it became an awful violation of trust—why are we targeting this peaceful person that’s never harmed anyone in their lives as far as I could tell? This was the boogeyman in the minds of law enforcement. If we can’t get the big criminal enterprise, by God we’re gonna go after anybody that we can so that we can get a score.
Lam: Luckily for Nick Taiber, the police’s target in Waverly, Iowa, was not a danger to anyone. That doesn’t make it better. When the target is not a threat, why are you forcing some kid to conduct covert operations on your behalf? And why would you need to do that if the target is a threat?
There have been a series of botched informant operations in the last 10 years that follow the pattern of Nick Taiber’s story, only with far worse results. Rachel Hoffman in Tallahassee, Florida, in 2008 was arrested on marijuana and ecstasy possession, and threatened with very serious charges. In exchange for leniency, she agreed on doing a $13,000 drug and gun deal in a sting operation set up by the police. The police lost track of her, and she was shot in the head by the dealers. Andrew Sadek in North Dakota had a similar story: He was threatened with 40 years, so instead he started buying drugs for police at North Dakota State College of Science. Andrew disappeared and was found in a river with a gunshot wound to the head and a backpack filled with rocks. Andrew’s parents think he was murdered. The police say it was a suicide—Andrew’s way of trying to get out of his informant deal. His parents are still fighting the police in lawsuits to this day.
Hunt: I think if you look at the sort of harm, the risks, that you’re subjecting a person to in this situation, it really amounts to what you might describe as a form of legal punishment. Because at the end of the day, it’s a way for the informant to work off their misdeed, their wrongdoing. My problem is that we get there through this vast discretion, which I think deviates from basic rule of law governance. And it’s also this kind of punishment that’s really outside the normal judicial process.
Lam: Right, because if we think of the legal system as determining culpability, what we’ve put in place is something like: presumption of innocence, trial, evidence, sentencing where there’s people testifying. What you’re saying is that the police in their discretion are bypassing that entire system.
Hunt: Another way to put it, which may be a little bit unusual: People have a right to legitimate punishment. They have a right to punishment. But in a case like the use of an informant, you’re sort of working off your crime, your punishment, in this off-the-books way, to mitigate your wrongdoing. Your right to being punished in a legitimate way is being denigrated.