It used to be that if a crime were committed, law-enforcement investigative authorities would set about the task of solving it. Sometimes they did, and sometimes they didn't. Sometimes -- usually, in fact -- the culprit would be brought to task, and once in a while an innocent person would be convicted. But in just about every case one could be certain that a crime had in fact been committed, and that the ensuing investigation had produced good reason to believe that the defendant did it.
Then, sometime in the late '50s or early '60s an unheralded change crept into the federal criminal justice system and later trickled down to the states. Suddenly law-enforcement authorities began by targeting some individual suspected of being a "racketeer" or an "associate of organized crime" and then proceeded to try to get the goods on that person. Since the authorities usually did not know in advance what crime had been committed, they usually had to first find some person who knew the targeted individual and who was willing to testify. Getting someone to testify almost always meant having to exchange some favor for that testimony.
Out of this chain grew a system for the use (and abuse) of informants and "witnesses for hire" which eventually was to get entirely out of hand. Pressure is now routinely applied to potential witnesses in order to get them to "turn" and testify against targeted individuals. Such witnesses are not selected because they are thought to have witnessed the targets' committing any specific crime. Rather they are selected because they are known to have associated with the target, and a jury might well believe anything they say about the activities of that target.
Such potential witnesses are subject to blandishments that previously would have been unheard of. They are offered jobs, money, immunity from prosecution for crimes, and release fro prison for crimes which they already stand convicted. In many cases, witnesses are given wholly new identities, which frequently allows people with long criminal records to start life afresh in a new location. Frequently, what they start afresh is a new life of crime, for a fresh identity is coupled, of course, with a fresh credit rating.
There is a chain-reaction aspect to this law-enforcement technique. When the targeted defendant is convicted on the testimony of the bought witness, that defendant in turn becomes grist for the prosecutorial mill and is sought after as a witness against yet other suspected targets.
These techniques have produced a nightmare in the criminal justice system. It has become almost routine for any person in trouble to offer to exchange information and testimony in an effort to buy his way out of trouble.
The dangers inherent in this technique are obvious. Where selection of the witness, or of the target, precedes the accumulation by prosecutors of any evidence whatsoever that the target has committed a specific crime -- or indeed that the crime has been committed at all -- the danger dramatically increases than an innocent person will be convicted, or at least that a person will be convicted for a crime which he did not commit, even if he might have committed other crimes.
It is not unusual for a prosecutor to suggest to a potential witness that the authorities suspect that a particular target is a racketeer or criminal, and to then ask the witness what he knows that can put the target behind bars. Truth is not enhanced by prosecutors making such blatant suggestions to desperate men -- men who not only are in serious trouble themselves but who frequently have not in the past demonstrated an overly keen devotion to the truth.
As Thomas More says in "A Man For All Seasons," if the laws of the land are chopped down in searching for the devil, there will be no laws left to protect the innocent citizen when the chill winds of persecution start blowing in his direction.
The goal of incarcerating "racketeers" and "organized crime figures" does not justify taking short cuts around the legal protections which have for centuries distinguished Anglo-American notions of justice and liberty under law. Current trends in the use -- and abuse - of informant witnesses threaten to remake our criminal justice system to resemble justice under the Queen of Hearts in "Alice in Wonderland," where the sentence comes first, followed the trial, and then the crime. We have to return to solving crimes, rather than producing targets and then witnesses, and thereby all-too-frequently manufacturing the crime or the target's role in the crime.