When prosecutors can offer liberty in exchange for cooperation, justice becomes a commodity — sold to the highest bidder — rather than pursued for truth.

After being abducted and unlawfully renditioned to an El Salvadoran gulag by the US government, Kilmar Abrego Garcia has been returned to face dubious criminal charges. His fate now hangs on the testimony of Jose Ramon Hernandez Reyes.

Reyes isn’t a disinterested witness, rather a three-time felon who is eligible to be deported and  has everything to gain from testifying against Abrego Garcia. Now that prosecutors want his testimony, he’s being freed. Accordingly, Reyes has since been released from federal prison to a halfway house and allowed to remain in the country for at least a year. This practice should alarm every American concerned with justice.

As a former public defender, I’ve seen the government wield its immense power in countless ways. What if my client, facing a daunting federal case, insisted on his constitutional right to a jury trial? Our best hope? If the prosecution’s key witness, a transient individual who could benefit from some stability in his life, simply didn’t show up. If I — the defense attorney — were to offer that witness $50,000 not to testify, it would be a clear violation of federal law, including the Federal Bribery Statute.

But what if the roles were reversed? What if I were the prosecutor, and instead of money, I offered that witness something far more valuable in exchange for their testimony: their liberty, or the ability to remain in the United States when otherwise facing deportation? Would that also be bribery?

A plain reading of the statute, which prohibits giving “anything of value” for testimony, suggests that it would. And in the 1998 case of United States v. Singleton, a three-judge panel of the United States Court of Appeals for the Tenth Circuit agreed, expressing that liberty is something of value. Accordingly, the panel correctly held that the statute prohibits prosecutors from bribing witnesses with leniency in exchange for their testimony. This decision sent shockwaves through the Justice Department, who decried it as “absurd.” Their argument? If prosecutors can’t offer leniency in exchange for testimony, defendants would have no incentive to plead guilty and our courts would grind to a halt. These concerns weren’t exclusive to prosecutors. In the days following the panel’s ruling, there was bipartisan consensus in Congress to categorically exempt prosecutors from the statute.

But those concerns were allayed when, just six months later, the full Tenth Circuit reversed the panel’s ruling. The court created a categorical carve-out for the Justice Department, holding that the term “whoever” in the statute could not possibly have been intended to bind prosecutors. Are prosecutors people? Common sense says yes. But the court preposterously said otherwise. This reversal wasn’t just a legal nicety; it was an endorsement of the rampant practice of bribing witnesses with leniency. The human cost of this practice is profound, and Abrego Garcia is just the latest example.

Another chilling example is Walter McMillian, whose story became synonymous with the book and movie Just Mercy. In a trial steeped in racial injustice, it took jurors only a day and a half to convict McMillian of the murder of 18-year-old Ronda Morrison. McMillian found himself on Alabama’s death row, his conviction resting heavily on the induced testimony of prolific liars including Ralph Myers — a career criminal much like Jose Ramon Hernandez Reyes.

It later emerged that prosecutors had deliberately withheld exculpatory evidence, and that their star witness, Ralph Myers, had lied. The sheriff and investigators had pressured Myers into accusing McMillian — a man he didn’t even know. A hidden recording revealed Myers bitterly complaining that he was being forced to implicate McMillian for a crime neither of them had any role in. In exchange for his testimony, prosecutors promised Myers he would be spared the death penalty in another matter.

Myers tried to recant before trial, telling investigators that he was lying, but the Alabama Bureau of Investigation persisted. They weren’t interested in the truth; only in securing a conviction. Investigators went to unprecedented lengths, placing both Myers and McMillian — pretrial detainees — on death row to exert additional pressure. Myers fulfilled his promise to the prosecution, sealing McMillian’s destiny. McMillian was ultimately exonerated, but not before spending six years on death row.

The Singleton decision, coupled with the tragic saga of Walter McMillian, lays bare a disturbing truth. When prosecutors offer leniency in exchange for testimony, it creates an irresistible incentive for witnesses to provide whatever narrative the government desires, regardless of its truthfulness. This isn’t justice; it’s a dangerous distortion of it. It’s a system where the price of justice can be the truth itself, bought with the very liberties our constitution is meant to protect.

We must demand accountability and reform. Our justice system must be about uncovering the truth — not purchasing it. The chilling precedent set by the full Tenth Circuit in Singleton must be revisited, and the unconscionable practice of incentivizing testimony must end. Congress can make this unequivocally clear, sparing decent people from the Justice Department’s wrath. The integrity of our criminal justice system, and the lives of those trapped in its web, depend on it.

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