Last week, a federal judge refused to detain Kilmar Abrego García, a Maryland resident who was wrongly deported to El Salvador and now faces criminal charges, based on what she deemed to be unreliable testimony from three different government informants. Judge Barbara Holmes described the lead cooperator as “a two-time, previously-deported felon, and acknowledged ringleader of a human smuggling operation, who has now obtained for himself an early release from federal prison and delay of a sixth deportation by providing information to the government.” Court order here. A Washington Post article — Star witness against Kilmar Abrego García was due to be deported. Now he’s being freed — describes the informant as having a long criminal history, including gun violence, in contrast with Abrego Garcia’s lack of any criminal record at all. The other two informants were family members of the main informant; in return for their testimony one is seeking release from custody (on unrelated federal criminal charges), and both are seeking deferred action on their pending deportations.
Many have commented on the counterintuitive fact that the government’s star witness has already been convicted of worse crimes than Abrego Garcia is accused of. But the informant market often flips the conventional rules of crime and punishment: letting the government use the proverbial “big fish” as an informant to catch smaller, less culpable fish. The practice is prevalent in, although not limited to, drug enforcement. This New York narcotics unit, for example, helped their informant drug dealers stay in business in exchange for turning in their low-level client drug users. An ACLU report described the same dynamic in New Jersey, under which “more culpable leaders of drug networks — the ‘kingpins’ — may get less severe punishment than underlings who play a lesser role in the drug trafficking operation.”
Perhaps the highest profile critique of this practice issued in 1966 from none other than U.S. Supreme Court Chief Justice Earl Warren, himself a former prosecutor. In its efforts to prosecute Teamsters Union President Jimmy Hoffa for a misdemeanor, the FBI dug up an incarcerated informant who was facing charges on manslaughter, kidnapping, embezzlement, assault and perjury. The informant was freed and all charges eventually dropped in exchange for his help prosecuting Hoffa. The Supreme Court validated the deal in the case Hoffa v. United States, but Chief Justice Warren dissented, complaining that “the Government reache[d] into the jailhouse to employ a man who was himself facing indictments far more serious … than the one confronting the man against whom he offered to inform.” He worried that “this type of informer … evidence[s] a serious potential for undermining the integrity of the truth-finding process in the federal courts.” Chief Justice Warren lost that argument, which is why the government is legally permitted to use, reward, and even forgive serious criminal offenders when they serve as informants against less blameworthy or dangerous people.