The federal witness protection program: Its evolution and continuing growing pains

Introduction Sometimes the best way to catch a crook is with another crook. However, this approach can have deadly consequences. Because of them, the Federal Witness Security Program emerged. The Program, commonly called the Witness Protection Program (WPP), was established in 1970 with the expectation that approximately 30 to 50 people a year would require its services; however, it has burgeoned beyond initial expectations.(1) Since its inception, more than 6,700 witnesses have entered the program.(2) And at the present time, approximately 20 to 25 witnesses a month are added.(3) This number does not include dependents. One witness, for example, brought 16 family members into the program at government expense.(4) The average is roughly 2.5 family members per witness.(5) Including family members, approximately 16,000 individuals have now received the WPP's services.(6) The cost of operating the WPP is substantial: "The total cost of bringing one witness (and immediate family) into the program is approximately $150,000 and [the] operating budget for the `program [in fiscal year 1996 was] $46.3 million."(7) The operating budget for the WPP in fiscal year 1997 is $61.8 million (with $41.6 million earmarked for witness expenses and $20.2 million to cover the salaries and expenses of Marshals Service employees operating the program).(8) Dempsey has framed the rationale for such expenditures in the following terms: "U.S. Attorneys throughout the nation ... state that [the program] is the most valuable tool that they have in fighting organized crime and major criminal activity."(9) Over 100 mobsters are purported to be participants in the WPP.(10) For example, the testimony of alleged protected witness Salvatore Gravano,(11) who was reportedly involved in nineteen murders and actually acknowledged pulling the trigger in one hit proved instrumental in sending mob boss John Gotti to prison for life.(12) In addition, terrorists, drug traffickers, members of motorcycle and prison gangs, and other major criminals have been adversely affected by the testimony of protected witnesses.(13) As the needs of law enforcement have changed, so too has the focus of the WPP shifted. According to Howard Safir, Associate Director of Operations of the United States Marshals Service, over 80 percent of WPP cases involve drug prosecutions, compared to roughly 33 percent of cases in 1983. As a result, a major problem has arisen from the need to assimilate into the WPP foreign nationals who are involved as witnesses in drug cases.(14) In all the cases involving protected witness testimony since the program's inception, the government has reportedly realized a conviction rate of 89 percent.(15) Behind this impressive statistic lies the fact that familiarity on the part of witnesses often goes beyond casual observations and includes criminal involvement in the criminal enterprise: "97+ percent of witnesses entering the program have had criminal records and been deeply involved in some type of criminal activity."(16) Defense attorneys who have assisted in placement of clients in the program have maintained that the more heavily one is immersed in a criminal enterprise the easier it is to enter the program since the information to be exchanged is of greater value.(17) Even so, according to the United States Marshals Service "[t]he recidivism rate for witnesses with prior criminal histories who entered the program and were later arrested and charged with crimes is less than 23 percent. This rate of recidivism among program participants is less than half the rate of those released from the nation's prisons."(18) Though prosecutors are considered officers of the court, the office of prosecutor actually falls within the executive branch of government; as such, prosecutors enjoy almost unbridled discretion.(19) It is not uncommon for prosecutors to cut deals with informants and cooperating witnesses. This vast discretion of the executive branch of government is evident when one examines the operations of the WPP. …