Like most law enforcement officers, I was required to handle informants (or “confidential human sources”) when I was an FBI Special Agent. At the time, I had no idea that I would eventually leave government service for academia. However, seven years after going through New Agent Training at Quantico, I left the FBI to pursue my doctoral work in philosophy at the University of Virginia. This change came about for a variety of reasons, and most had nothing to do with the FBI. But I did leave the FBI with vague concerns about the scope of law enforcement power.

Upon arriving at the University of Virginia, then, there was little doubt that my work would in some way be an attempt to make sense of my concerns as an FBI agent. One concern was about the police’s use of informants.  Consider the case, Alexander v. DeAngelo, in which an informant was tasked by the police to engage in a sex act as a way to gather evidence about a suspect’s use of prostitutes.  In denying the informant’s subsequent lawsuit, the court stated:

[The informant] engaged in a sexual act, and not for pleasure. But confidential informants often agree to engage in risky undercover work in exchange for leniency, and we cannot think of any reason, especially any reason rooted in constitutional text or doctrine, for creating a categorical prohibition against the informant's incurring a cost that takes a different form from the usual risk of being beaten up or for that matter bumped off by a drug dealer with whom one is negotiating a purchase or sale of drugs in the hope of obtaining lenient treatment from the government.

The opinion’s rationale is based in part upon the following: (1) The informant’s ability to bargain for potential leniency in exchange for engaging in the underlying act on behalf of the police, and (2) the police’s tactics did not rise to the level of a violation of the informant’s constitutional rights. 

Informants are motivated by all sorts of reasons; for example, some have a strong sense of patriotism and simply want to help the police. But consider the more limited case of informants who are tasked by the police to engage in risky undercover operations when the police have leverage over the informant (e.g., the police have evidence that the informant committed a crime). Ultimately, I think these situations highlight the extent to which the police’s discretionary authority can be an affront to basic rule of law principles.

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"Should untrained citizens conduct the risk-laden, otherwise illegal activity of police, as required by some informant-police agreements? I think there is good reason to answer this question in the negative to the extent that such agreements are an affront to some facet of the informant’s liberal personhood."

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It is interesting to explore how the bargaining process involved in agreements between the police and informants resembles the bargaining process associated with contracts. This has led me to the view that the underlying principles of the legal doctrine of unconscionability provide weight in determining the extent to which these informant-police agreements are justified.