Thursday, October 19, 2017

Andrea L. Dennis


Abstracted from:  Andrea L. Dennis, A Snitch in Time: an Historical Sketch of Black Informing During Slavery, 97 Marquette Law Review 279 (Winter, 2013) ( 373 Footnotes) (Full Article)

 

"Young generations of African-Americans, unmindful of their legacy of resistance against the slavery system, don't understand that snitching is not cool."  --Mumia Abu-Jamal

 

The government relies upon a large, unregulated collection of snitches to ensure the operation of the modern criminal justice system.  Government officials claim snitches are necessary for efficient and effective crime-fighting.  Nevertheless, legal scholarship has documented a host of mischiefs bred by dependence on snitches.  It is especially troubling that these harms disproportionately fall upon the andrea l  dennisBlack community, specifically those individuals who dwell in urban, impoverished, high-crime neighborhoods.

Black viewpoints on snitching and informing are varied.  A particularly controversial mindset is reflected in the "Stop Snitching" *282 ethic revealed by the 2004 publication of an underground video recording filmed in a Baltimore City neighborhood.  Today, Stop Snitching is often associated generally with urban or hip-hop culture.  The contours of the credo are debatable. At a minimum, Stop Snitching dictates that those engaging in criminal behavior not incriminate others engaging in crime.  In its strongest form, the expression prescribes that community residents--law-abiding or otherwise--refuse to provide information to government authorities for criminal investigations and prosecutions.

Widespread awareness of the Stop Snitching idiom has provided a platform for robust debate--publicly and within the Black community-- *283 on snitching and informing. Citizens from widely varying walks of life have weighed in on Stop Snitching. Local community residents directly affected by informing and government officials charged with policing those communities have made known their perspectives.  It has attracted the attention of legal scholars.  Within the Black community, entertainers, journalists, public intellectuals, and academics have also contributed their viewpoints either for or against snitching and, more broadly, informing.

Some proponents and opponents of informing make arguments reflecting modern-day practical concerns. Advocates for informing argue that it is necessary to prevent and solve crime, particularly drug crime and Black-on-Black crime, and that choosing to inform is understandable in light of the extreme criminal penalties faced by one who does not inform.  In response, their adversaries point to the litany *284 of bad outcomes for already marginalized Black communities, including: unnecessary and disproportionate incarceration of Black men; increased crime; government abuses such as police brutality; unreliable convictions; individual and communal intimidation and retaliation that the government is unwilling or unable to prevent; and a fractionated and suspicious Black community.

America's history of criminal justice enforcement of and within the Black community--both recent and centuries old--provides another rationale for some Black Americans who oppose informing. During the American Civil Rights Movement, the United States government seeded Black communities with confidential informants instructed to monitor and report on the activities of movement participants--both famous and ordinary--as well as to act as agents provocateur.  Following on the heels of the Civil Rights Movement are the now decades-old Wars on Drugs, Crime, and Gangs.  During these "wars," state and federal governments have relied heavily on criminal suspects, jailhouse informants, and street-based confidential informants to police communities, particularly Black ones.

Reversing course in time, the Black American experience during slavery also offers a rationale against informing.  Quite pointedly, *285 Mumia Abu-Jamal, journalist and former Pennsylvania death row inmate, who is quoted to open this Article, wrote:

Throughout the long, tortured centuries of oppression against Blacks in America, a special contempt was reserved for those who dared snitch against the endangered slave community, people who made their "livings" by selling out their own people, sending information to dreaded slave-catchers in the South, who used the infamous Fugitive Slave Act to track and re-enslave those who dared escape their fiendish clutches.

Thus, since its earliest days, the United States' approach to policing Blacks' alleged criminality was often predicated on using Black citizens to target other Black citizens, sometimes fairly and sometimes shockingly unfairly. And these Black experiences of criminal justice policy are claimed to have bred deep distrust of government and informing.

Legal scholars of informant law and policy tend to only modestly discuss historical aspects of the practice, and noticeably absent from even these brief discussions is Black America's historical experience with informing. Two exceptions exist. Professor Randall Kennedy--in support of a larger work on race and criminal justice--wrote briefly regarding the FBI's destructive use of informants in the Black community during the Civil Rights Movement.  Professor Alexandra Natapoff richly explored the harms of snitching during the War on Drugs, particularly for the Black community.  Notwithstanding the writings of Kennedy and Natapoff, at best, most informant law scholars have cursorily referenced the FBI's use of informants to investigate Black leaders and organizations during the Civil Rights era, which coincided with the Vietnam War era.  Thus, Black snitching and *286 informing during slavery remain completely unexamined. This omission is striking in light of the centrality of slavery to the Black American and United States experience, historical justifications offered for Blacks' unwillingness to inform, and the disproportionate impact of modern informing policies and practices on Black communities.

This Article fills a gap in knowledge by sketching the socio-legal creation, use, and regulation of informants in the Black community during slavery and the Black community's response at that time.  This Article proceeds in six parts, using primary and secondary historical and legal sources from a variety of locales. The various primary sources referenced include slave codes, legislative and judicial petitions, case law, and narratives. The petitions and narratives are the products of enslaved as well as free Blacks, and Whites. These first person accounts are often profound and moving, thus at times these sources are heavily quoted. Secondary sources include academic works by historians--legal and non-legal--of slavery.

Part II describes Whites' need for and cultivation of Black informants who were vital to the White community's prevention, *287 detection, investigation, and prosecution of Black misconduct affecting White communal or personal interests. Informants were used to police a wide assortment of offending behavior and were deemed especially helpful at preventing and squelching rebellions.  Part II also distinguishes among informants. Some cooperators merely provided information while others actively assisted Whites in regulating Black misconduct.

Blacks confronted with making a choice as to whether to inform likely weighed multiple factors. Part III lists and exemplifies commonplace factors. Weighing in on the side of informing were loyalty to owner, preservation of one's life or status, communal self-regulation, attainment of liberty or criminal leniency, and financial reward.  Communal solidarity, resistance ethic, and fear of retaliation, as well as protection of others countenanced not informing.  Religious conviction was a swing factor depending on the particular individual or circumstance.

Debates on informing commonly implicate questions of loyalty. In so keeping, Parts IV through VI more closely examine three loyalty-related themes exposed in Parts II and III: (1) the creditable existence of what may be termed a "code of silence" held by Blacks during slavery; (2) the revelation of slave rebellions and runaways as the ultimate betrayal by one Black person of another Black person; and (3) the claimed willingness of domestic slaves to freely inform to their owners out of misplaced loyalty. Part IV argues that some Blacks rejected the legal and socially based opportunities and motivations to inform. Such individual or communal response offered a means to resist White oppression and build group loyalty. Notwithstanding this possible code of silence, some Blacks did inform on other Blacks, and Part V offers descriptions of arguably the utmost form of betrayal--the disclosure of information regarding a slave rebellion or the location of a runaway slave.

Part VI briefly defends domestic, or house, slaves who hold an especially negative place in the mind of the modern Black community. This Part speaks to the allegation that domestic slaves frequently and *288 unabashedly betrayed their fellow enslaved, sometimes for little benefit. Part VI concludes that while undoubtedly some house slaves did inform, it is unfair to malign the entire class of domestic slaves.

Finally, in light of the reality that some Blacks did inform, Part VII describes the impact of informing on the Black community. Not surprisingly, informant betrayals bred distrust and disunity, both of which are posited as modern-day consequences of informing in the Black community.  Black informants arguably also engendered inaction among slaves who might have been reluctant to engage in rebellious misconduct for fear of being exposed to Whites.

The Article concludes by mentioning future avenues of historical inquiry on Black informing during slavery and ruminating on the implications of the current state of knowledge on contemporary informant law and policy. This Article does not, however, offer any normative or prescriptive conclusions. Thus, no opinion is offered as to whether Blacks should continue or give up reliance on slavery, and history more generally, to support an anti-cooperative ethic. Similarly, whether government officials should cease employing informants to police Blacks because of the painful experiences of Blacks with informing throughout American history remains unresolved. Until such time as the historical picture of the Black experience with informing is flush, answers to those matters are speculative.

The way in which Black people experienced informing during slavery is surely but one factor among a multitude of factors influencing modern Black Americans' perspectives on informing. Ideally, the historical information herein will be expanded upon and then coupled with information--extant or to be discovered-- regarding the Black experience with informing during other historical eras such as Reconstruction, Jim Crow, the Civil Rights Movement, and the War on Drugs. Black America's experience during these times also likely has both independent and cumulative force in establishing modern attitudes on informing. Once complete, this collective information should facilitate nuanced conversation as to whether historically grounded justifications for anti-cooperation today are sensible; whether the Black community should be demonized for holding any anti-cooperative ethic; whether Blacks--individually and communally--should or can endorse *289 informing; and how current policy should respond in light of the Black community's viewpoints.

Unquestionably, obvious and significant differences between the Black community's position in today's society and during slave times serve to undermine reference to slavery as a rationalization for not informing. Most apparently, Blacks today are not slaves and so they are not focused on the most basic recognition of their individual and collective humanity. Relatedly, informing on fellow slave subjects poses greater moral dilemmas than informing on a neighborhood drug dealer.  Also, even if marginalized, Blacks currently receive significantly more social and legal protections than during slavery. Finally, during slavery, the prime beneficiary of law and legal policy--including that related to informants--was White society, while Black informants currently are credited with benefiting Black communities, particularly those besieged by crime. This non-exhaustive list only touches the surface; certainly, more distinctions may be offered.

In light of these dissimilarities, concluding that no comparison can or should be made between experiences and positions today and in the past is tenable. On the other hand, drawing a line from past to present by recovering the experiences of slave and free Blacks with informing offers a sounder position from which to understand the modern Black community's ambivalence regarding informing. Thus, even without drawing normative conclusions or offering prescriptive solutions, this Article importantly advances our understanding as to why contemporary Blacks may distrust informants and government promotion of informing, which in turn, at a minimum, may undergird our response.

 


 

Associate Professor of Law, University of Georgia School of Law.

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