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Journal of Technology Law & Policy

Document Type

Article

Abstract

Informants have been falsifying confessions in the United States since at least 1819. That year, Vermont authorities could not solve an alleged homicide since the victim was missing, and brought in a known perjurer for help. The perjurer elicited a “confession” from a suspect, who received the death penalty. Days before the hanging was to take to place, the supposed murder victim returned to town, alive. Today, jailhouse informants, many of whom are pathological liars, who tell prosecutors about suspects’ alleged confessions, will receive leniency or other perks. Problems stemming from this prompted a grand jury investigation in Los Angeles in 1990 and contributed to the commutation of all Illinois death sentences in 2003.

What would happen if it were even easier for informants to get information about fellow inmates? Would there be more informants, or would prosecutors and the criminal justice system finally decide that informants are untrustworthy and that they do more harm than good? With the advent of the Internet, which promises unencumbered access to information, that time may already be upon us. This Article considers the effect that Internet access, either direct or through third-party providers, has on jailhouse informants.

Part II provides a primer on the use of jailhouse informants in the criminal justice system, showing how they trade lies for prosecutorial leniency. Part III demonstrates how informants, or those acting on their behalf, can exploit the Internet to generate a false confession, using the case of Kurt Sonnenfeld as an example. Part IV considers whether states can and should limit prisoners’ access to the Internet. Part IV(A) argues that states laws limit prisoners’ access to Internet-generated materials are unconstitutional because they are not sufficiently related to a legitimate government interest. Part IV(B) argues that practical considerations mandate that prisoners be allowed at least limited access to the Internet. Ultimately, the paper concludes that prosecutors, in light of informants’ increased access to information, should consider severely curtailing, if not discontinuing, the use of jailhouse informants.

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