Ladd Erickson: The Criminal Informant Bill, Known as “Andrew’s Law,” Was Deeply Flawed

When the Senate Judiciary Committee took up HB1221 it had eight pages of definitions and prescriptions regarding the police use of confidential informants (CI’s).

An important caveat about that committee is its chairman is Senator Kelly Armstrong, who is a working criminal defense attorney. In this instance, Sen. Armstrong stated at the hearing that he has represented people that worked as CI’s for the police, and defended people charged with crimes by a CI’s involvement in an investigation.

Having subject matter work experience on a committee brings focus onto a bill’s policy – and as HB1221 came over from the House, it had a number of unfocused practical problems:

The House version of HB1221 required prosecutors enter into written agreements with a potential CI, and pursuant to the bill, that agreement must spell out a number of items. This written agreement requirement is at the heart of the House bill’s policy. But, under Rule 3.8(c) of the North Dakota Rules of Professional Conduct, a prosecutor is barred from communicating with an unrepresented person charged with a felony. Therefore, the direct conflict of laws the bill created meant the police could almost never use a CI. For simplicity, the bill could say: “The police shall not use a confidential informant when investigating a crime” and that would have the same substantive policy as the multi-page bill that passed the House.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]…in the bowels of many bad policy bills are emotions run amok…[/mks_pullquote]

The House bill defined a CI as anyone who provides “important information” to law enforcement regarding “criminal investigation efforts” in consideration for “…mitigation of punishment for a crime…” That definition is well beyond doing controlled drug buys and implicates a host of standard police practices in interviewing people while investigating crimes. Couple that broad CI definition with the extensive requirements the House bill mandates for filing reports to the Attorney General’s Office regarding CI’s, and the House bill created a lot of un-purposed bureaucracy and waste.

The House bill puts a bar on university police using college students as CI’s to make controlled buys. I went into the Army when I was 17, and started college when I was 22. I began law school when I was 30, and in my law school class there was a retired Army colonel in his late 40’s.

Some people actually go to college after they get out of the Pen. DUI homicides, for example, can cause “normal” people to end up incarcerated – and their college plans have to be delayed because of it. When they get out of the Pen they’re going to be older than average students, and students who have firsthand experience with lawyers and our criminal justice system. Why is an 18 year old that isn’t a college student eligible to be a CI under the House bill, and military or penitentiary veterans who go to college are not?

The emotions behind HB1221 deal with small control buys of marijuana by a college student in Wahpeton. But, college campuses have ecstasy, meth, and heroin dealers also. It’s not practical policy to have “college student” – with no other facts or evidence; no consideration of who the person is, nor the crimes under investigation – to be a statutorily barred CI.

In that same vein, the House bill bars a person in outpatient treatment from doing controlled buys. Routinely, police officers encourage CI’s to seek drug treatment, and usually CI’s are tested through their bond orders or probation officers for drug use. Drug use can get a CI’s agreement with law enforcement terminated.

A frequent motive for a person to be a CI is they want to cut ties with the network of people that have brought misery to their lives. Under the House bill, a CI would have to delay getting started in a treatment program until their CI work is done, or would have to work their way back into their former life after treatment so they could buy drugs from their dealers again. Both bad policy options to put in a statute.

What is missing from the House version of HB1221 is also important. For all of its pages, the only remedy in the bill for violations of its provisions is people can make a report to the agency the officer working with a CI is employed by. In rural areas, police chiefs and sheriffs are more than just administers: they also cover patrol shifts; do investigations; and at times run CI’s – at least as they are defined in the House bill. If a CI or their parents have a concern about an officer, their remedy under the House bill is to report their concerns to who maybe the same officer that they have concerns about.

Prosecutors do not want cases tainted by unethical or unduly coercive police conduct. Even one outlier case where the police or a prosecutor’s actions were out of bounds with a CI can cause damage to the reputation a law enforcement agency or state’s attorney office. If a defense attorney has a client that would benefit by working as a CI, but that attorney has had bad experiences with past CI’s in that jurisdiction, the police can shoot themselves in the foot for the long term. Things an officer says to a CI often do end up in court at some point, and that does have a self-policing affect.

We have had CI’s involved in thousands of cases in our State over the years. The House version of HB1221 puts extensive burdens on a CI system that largely works, and then fails to provide address for police misconduct if that were to occur.

After the Senate hog-housed HB1221, newspapers waxed doom about the amendments without even touching on all the policy problems in the House bill. Rob had a lawyer on his radio show that claimed the amendments made a meaningless bill. Really? Where’s the “there there” in the House version of the bill? If an officer wants to run a college kid as a CI despite the House bill preclusion, what is anyone going to do about it? There is no crime or other penalty for that in the House bill. In fact, there’s no “there there” throughout the whole House version of the bill.

Dentists, doctors, lawyers, pharmacists – basically all licensed professions, including the police, have licensing and disciplinary systems in state statutes that regulate the conduct of their respective professions through administrative rules that are approved by the legislature. The Police Officer Standards and Training (POST) Board is the governing board for law enforcement officers.

The POST Board is civilian/police comprised board that can issue admonishments and police officer license suspensions and revocations. The heart of the Senate amendments to HB1221 mandate that the POST Board enact administrative rules for working with CI’s, including placing limits on police conduct while recruiting CI’s. After they are written, these rules will have to be approved by the legislature, and officers violating them can lose their police officer licenses.

The cynical commentators to this piece will write the POST board will just cover for the cops if anyone files a complaint against an officer for how a CI was handled.

That cynicism can be conveyed about every one of our professional licensing boards. But just remember, in the bowels of many bad policy bills are emotions run amok, like the House version of HB1221 that created a lot of bureaucracy and had no accountability system at all. The Senate version of the bill centered on creating practical standards, and ramifications for violating those standards. It may not be good drama, but it is good policy.