When Bethany Webb’s sister, Laura, was killed in a mass shooting in 2011, she couldn’t imagine things getting worse.  But then District Attorney Tony Rackauckas of Orange County, California, took the case.  In his determination to impose the death penalty over Webb’s objection, Rackauckas used jailhouse informants to elicit damning statements from the defendant, Scott Dekraai, while he was in jail.  These informant-defendant interactions violated the constitutional right to counsel since no one is allowed to interrogate defendants without their attorneys present.

Rackauckas knew that what he was doing was illegal, but he did it anyway.  And it wasn’t the first time Rackauckas had broken the law in pursuit of a conviction.  In fact, Rackauckas and Orange County Sheriff Sandra Hutchens had overseen a systematic, methodical program of using jailhouse informants for years.

Their era of immunity ended in 2014 when Dekraai’s attorney uncovered their illegal jailhouse informant program.  Surprisingly, even after their unlawful acts were discovered, Rackauckas, Hutchens, and their employees denied it, even lying about it under oath to Orange County judges and juries.

Rackauckas’s and Hutchens’s illegal acts corrupted the entire system, making it impossible for crime victims to achieve closure, defendants to receive due process, and the community to trust those charged with protecting them.  When law enforcement cheats, we all lose.  Now, seven years after Laura Webb was killed, her sister has joined forces with the ACLU, the ACLU of Southern California, People for the Ethical Operation of Prosecution and Law Enforcement, and the law offices of Munger, Tolles & Olson LLP to end this illegal and destructive informant program.

The Orange County informant program has three primary components, all of which violate the law.  First, Orange County deputy sheriffs cultivate relationships with "professional" jailhouse informants.  These informants are facing serious jail time themselves and therefore have a strong incentive to work for law enforcement.  Once incarcerated the lure of becoming an informant is difficult for such people to resist.

The sheriff’s department places them strategically near target criminal defendants awaiting trial.  Then the informants proceed to extract incriminating information.  The informants then trade that information for jailhouse perks, vast sums of money, and, most importantly, reduced sentences.  For example, deputy sheriffs paid one set of Mexican mafia informants $150,000 over eighteen months.

Second, informants often use threats of violence to get the information they need, in violation of defendants’ due process rights.  In some cases, informants with a history of violence told defendants that if they did not admit involvement in the crime with which they were charged, they would be assaulted or even executed on sight.  For many, the choice was clear: confess or die.  The unreliability of such coerced, involuntary confessions is part of the reason why the U.S. Supreme Court outlawed the tactic.

Third, to ensure the illegal informant program remained secret, the Orange County District Attorney’s Office has routinely suppressed all information about it.  The office is happy to use the illegally extracted information to secure convictions; it just doesn’t want anyone, especially defendants and their attorneys, to know that the information was illegally obtained.

This systematic failure to disclose favorable material information to defense counsel, who should have the chance to cross-examine the informants on the tactics they use and benefits they receive, violates the U.S. and California Constitutions as well as statutory disclosure obligations in the California Penal Code.  Rackauckas and Hutchens have been breaking the law in this way for years because they are more concerned with securing convictions than serving justice—a common problem in today's U.S. judicial system.

To put a stop to their lawlessness and lack of accountability, the ACLU has filed a lawsuit to bring to light the full extent of the illegal program, including all cases, like the Webb case, that have been tainted.  The ACLU is also seeking court orders to halt the program immediately and to require the district attorney and sheriff’s department to undertake concrete, lasting reforms to ensure that such a miscarriage of justice cannot happen again.  This lawsuit is part of an effort to work toward much-needed reductions in mass incarceration and reforms in the criminal justice system nationwide.

While the spotlight has been focused on the illegal activity in the Orange County court system, other court systems across the nation are no less dirty—it’s just that most are still operating under the radar.  Accountability must be part of any judicial system in order to eliminate corruption, assure citizens of their rights, and maintain integrity.  Without it, we will continue to have perverse vigilante-like behavior from others like Rackauckas and Hutchens in every part of the judicial system.