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- Title
SHOULD WE FLIP ON FLIPPERS: A RATIONAL APPROACH TO PROVIDING PENALTY REDUCTIONS TO CRIMINAL INFORMERS.
- Authors
BAGARIC, MIRKO; XYNAS, LIDIA; MCCORD, DANIEL
- Abstract
President Trump has declared that "flippers" (offenders who inform on other criminals to receive a reduced penalty) should not be eligible to strike deals in order to reduce their sentences. The President believes that many informers simply lie to get a penalty discount. Flippers present a complex paradox in the legal system. Jurisprudentially, President Trump is correct. Flippers are a scourge on the criminal justice system. Offenders should not benefit from the fact that their crime happened to be committed with others, and it is objectionable to reward disloyalty and opportunism. Moreover, the community often spends large amounts of money paying informers for their testimony and protecting them from other criminals. However, pragmatically there is a strong social imperative to detect and convict criminals, and sometimes a means of achieving this is to elicit the assistance of other criminals. The best way to get criminals to assist with this aim is to incentivize them with a penalty reduction or, in some instances, indemnity from prosecution. Flipping is a very common practice, with studies showing that nearly half of all drug trafficking convictions involve evidence by one offender against other offenders. Pragmatically, however, it has been established that flippers often lie in order to receive a penalty reduction, and evidence from criminal informers has been shown to be one of the most common causes of wrongful convictions. The maxim that it is "better that ten guilty people walk free, than one innocent person is convicted" is arguably given insufficient weight when considering the desirability of the flipper discount. The jurisprudential and pragmatic tensions relating to flippers represent an under-researched area of the law. This Article evaluates the desirability of providing penalty discounts to flippers and makes a number of reform recommendations. These include limiting the circumstances in which flippers can receive a penalty discount and quite often reducing the discount they actually receive. The current penalty reduction that is accorded to informers should be collapsed into the broader discount that is applied for rehabilitation. This enhances the coherency of this area of law and still provides some incentive for offenders to cooperate with authorities. However, the size of the discount is reduced, thereby reducing the likelihood of false testimony and wrongful convictions.
- Subjects
JAILHOUSE informers; CRIMINAL justice system; OPPORTUNISM (Psychology); WITNESSES; LEGAL status of prisoners; LEGAL testimony
- Publication
Tennessee Law Review, 2019, Vol 87, Issue 1, p121
- ISSN
0040-3288
- Publication type
Article