In the more than 36 years I have practiced criminal defense law, I have had many occasions to represent people who, out of self-interest, chose to cooperate with law enforcement against others in order to avoid criminal prosecution or obtain leniency. Often, the choice to cooperate is a difficult one in which the client weighs the personal benefits of cooperation against the stigma of being labeled a “snitch.” This is a familiar situation for those of us who practice criminal defense law, whether it is white collar crime or violent crime. However, criminal defense lawyers rarely think about why there is a stigma associated with cooperation. It is merely accepted as a part of the decision-making process that clients and their lawyers go through every day.
These are not legal questions. They are moral ones. But they are the kinds of moral questions that affect personal behavior. Some people would rather go to jail than cooperate because of their personal moral aversion to “snitching.” One might think that odd in a circumstance where the person against whom they are cooperating has done a truly bad thing and deserves to be convicted and punished.
Among the more infamous cooperators in our time were Jimmy “the weasel” Fratiano, a Mafia hitman who was responsible for multiple murders and who still reached a cooperation agreement with the government that put a cap on his jail time at five years. (He served 21 months). Another infamous cooperator was Leroy “Nicky” Barnes, who was so infamous a drug dealer that the New York Times published his picture on the front page of the Sunday Magazine with the words “Mr. Untouchable” under his picture.
Of course, notorious cooperation takes place in white collar cases as well. Think of Ivan Boesky, whose cooperation led to the downfall of Drexel, Burnham, Lambert. Or Dennis Levine, who passed insider information to Ivan Boesky, and then cooperated against Boesky.
So why do people still instinctively have a negative view of cooperators?
People are offended that cooperators get a break at sentencing (or even immunity) even if they are culpable themselves. That does not seem fair, and indeed, it isn’t. But society has made a judgment that in order to catch some bad guys, the government must enter into Faustian deals with other bad guys, and courts must give them some break in order to encourage people to testify against bad guys. Of course, that doesn’t affect our negative view of the cooperator. We just understand that there is arguably a greater good in making deals with them, even as we are uncomfortable with the seeming unfairness of it all.
Then there is the relationship between the cooperator and the person against whom they testify. The closer the relationship, the more the betrayal of that relationship is perceived as wrong. Add to that a situation where the cooperation is in the context of an unfair persecution of a friend, and the moral standing of the cooperator becomes even lower.
The crime involved is also a factor in people’s perception of the mortality of cooperating. If the defendant against whom the cooperator is testifying has done a really terrible thing (e.g., pedophilia), society’s interest in removing such a bad actor from society seems to reduce the level of indignation people feel against the cooperator. However, if the cooperator is culpable in the horrific behavior, it is hard to have sympathy for the cooperator simply because he testified against his partner in crime in exchange for a lighter sentence. Similarly, if the cooperator testifies against someone who is being unfairly persecuted (e.g., the red scare of the 1950’s), the perception of the cooperator is definitely more negative.
In addition, you have the personal circumstance of the cooperator. If he doesn’t cooperate and goes to jail for a long time, will his family suffer inordinately? What if he has special needs dependants, or a close family member with failing health?, or engaged in crime under duress or to save a loved one? One can easily forgive the cooperator who, because of compelling family circumstances, tries to reduce his or her sentence in exchange for cooperation.
At its core, the issue comes down to one’s sense of what is fair, both in terms of inter-personal relationships and in terms of the rewards that society is prepared to bestow on people who have done bad things, and who seek leniency or bounty for exploiting the circumstance of their bad behavior.
My view is that cooperators who have done bad things do not become good people simply because they acknowledge their wrongdoing and testify against others. Similarly, cooperators are not bad people simply because they cooperated. Each circumstance is different. Life is more nuanced than that. The decision to cooperate or not cooperate is a difficult one for many people not only because of the stigma attached to it, but also because it often involves testifying against friends. Because we all make moral judgments about the cooperator’s decision, it is useful to think about why there is a moral stigma attached to cooperation and consider the reasons for our discomfort, and whether they are well-founded.