When U.S. Secretary of State Marco Rubio visited El Salvador in early February to meet with Salvadoran President Nayib Bukele, Rubio announced that Bukele had offered to house “dangerous American criminals, including U.S. citizens and legal residents, in his jails.” Rubio then confirmed this offer on X.
For those who think that this was just social media posturing, the U.S. Department of State issued a “readout” of Rubio’s meeting with Bukele confirming Bukele’s “extraordinary gesture.” Bukele also wrote on X, “We are willing to take in only convicted criminals (including convicted U.S. citizens) into our mega-prison (CECOT) in exchange for a fee.” Billionaire and head of the DOGE (Department of Governmental Efficiency) Service Elon Musk retweeted that and noted that he thought this was a “great idea.”
A few days later, U.S. Senator Jon Ossoff (D-GA) penned a letter to Rubio and U.S. Attorney General Pam Bondi urging the Trump administration to “immediately and unequivocally reject” Bukele’s proposition to incarcerate U.S. citizens in El Salvador. Ossoff wrote in his letter that, “[e]ven entertaining this offer suggests a potential abandonment of core legal and ethical principles that protect the human and civil rights of Americans and others subject to U.S. jurisdiction.”
Is it Legal to Send U.S. Citizens Convicted of Crimes to Prisons in El Salvador?
Even President Donald Trump told reporters, in speaking of the offer, “If we had the legal right to do it, I would do it in a heartbeat.” And Rubio himself – an attorney – also acknowledged “There’s obviously legalities involved. We have a Constitution.”
It is illegal to expatriate U.S. citizens for a crime. In fact, U.S. citizens can only be stripped of citizenship if they knowingly perform acts resulting in a voluntary relinquishment of citizenship such as a “formal renunciation of nationality in the United States during a time of war” or “leaving or remaining outside the United States during a time of war or national emergency to avoid military service.” However, even if imprisonment in El Salvador does not strip incarcerated citizens of their status, it is still illegal under Trump’s own touted First Step Act.
There is no modern precedent for sending U.S. citizens who are convicted of crimes to other countries for punishment, or “banishment” as it has been formerly called and practiced. As far back as ancient Rome, people practiced self-banishment to escape severe punishment and exiled themselves from Rome. In the 18th and 19th centuries, the United Kingdom “banished” people convicted of crimes to its colonies in North America and Australia, as both a method of colonization and in some cases a commercial transaction since some could fill labor shortages as indentured servants. In fact, banishment emerged in the United Kingdom as an alternative to capital punishment. More than 50,000 people were transported to the American colonies by 1775; while more than 162,000 people considered “convicts” were sent to Australia between 1788 and 1868. Note that all people sentenced to penal transportation in Great Britain were sent to places that, while far away, were jurisdictions of the British Crown. The practice of penal transportation to the United States abruptly stopped around the time of the Revolutionary War.
The other legal impediment stems from a little-known provision in the First Step Act, which impacts where incarcerated people are housed. Signed by Trump in 2018 during his first term, the law included changes in federal sentencing in addition to reforms intended to improve the conditions of those in federal prisons. The law mandates that the federal government place people in “a facility as close as practicable to the prisoner’s primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence.” The policy behind this law is to facilitate family visitation; ensure incarcerated people are not deprived of the ability to see family, clergy, and other members of the community; and better support their reintegration into their communities upon release. The First Step Act even mandated that, but for the few exceptions and the incarcerated person’s preference for staying in their current prison, the Federal Bureau of Prisons must transfer already-incarcerated people to facilities closer to their primary residence when the law became effective – even if they were currently in a prison within 500 driving miles of their primary residence. No matter how you do the math, prisons in El Salvador are not within 500 driving miles (nor even 500 flying miles) of any part of the United States.
What about the Eighth Amendment?
Deporting American citizens to serve their sentence in an El Salvador prison would violate the 8th Amendment of the U.S. Constitution, which ensures that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The “cruel and unusual punishments” clause protects those convicted of crimes from excessively long sentences in prison in addition to ensuring that prison conditions meet certain health and safety standards.
But despite this provision, it has been up to the U.S. Supreme Court to provide the contours of what is acceptable punishment that doesn’t violate the 8th Amendment. There have been several significant cases that have helped shape the constitutional guardrails against “cruel and unusual punishment.” In the 1958 case of Trop v. Dulles, Chief Justice Earl Warren wrote that the “basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards.” Almost 20 years later in Estelle v. Gamble, the U.S. Supreme Court established what is known as the “deliberate indifference” standard. In that case, Justice Thurgood Marshall wrote that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’” which is prohibited by the Eighth Amendment. Other Supreme Court cases have focused on providing guardrails against “unnecessary and wanton infliction of pain,” and excessive use of force.
More recently, the U.S. Supreme Court ruled in the 2011 case Brown v. Plata that the conditions of confinement in California’s prisons were so inhumane that they violated the Eighth Amendment. In that case, evidence indicated that California’s prisons had operated at around 200 percent of design capacity for at least a decade. Some prisons were even operating at almost 300 percent capacity. There were not enough treatment beds because of the overcrowding, so suicidal individuals in prison were held for long time periods in “telephone-booth sized cages without toilets.”
So what are the conditions like inside the prison in El Salvador where people are likely to be sent? The Center for the Confinement of Terrorism (CECOT), a 40,000-capacity megaprison 45 miles from the capital San Salvador that opened in 2023, is a place where prisoners receive no visitors, do not participate in any rehabilitative or educational programming, and do not spend any time outside. The prison was constructed as part of Bukele’s campaign to eliminate crime and gangs. The result: more than 84,000 arrests in the country since March of 2022, almost entirely without due process. Bukele suspended basic rights such as access to attorneys and the right to a speedy trial through his “State of Exception,” making it simpler to arrest, prosecute, and imprison suspected gang members.
As of January 2024, El Salvador had the highest incarceration rate on the planet, with more than 1,000 people in prison per 100,000 residents. Notably, Senator Ossoff, in his letter to Rubio and Bondi, pointed out that the U.S. State Department warns U.S. citizens who travel to the country about Bukele’s declaration of a “State of Exception” and notes that those released from some of the country’s prisons “reported a lack of food and potable water and being limited to two tortillas, one spoonful of beans, and one glass of water per day.” Human rights advocates have found more than 6,000 violations in the country’s justice system, including “arbitrary detentions, torture, due process violations, enforced disappearances, and 366 deaths within state custody.”
If the Trump administration sends U.S. citizens convicted of a crime to El Salvador, it is almost certain that this maneuver violates the 8th Amendment, making the transportation unconstitutional.
What Happens From Here?
In the best-case scenario, this offer goes down in history as a public performance of world leaders who are known for their populist and authoritarian tendencies, in addition to their belief that reducing or eliminating civil liberties will reduce crime. It is unclear whether the Trump administration is still researching the “legality” of this proposal or thinking through this scenario with any seriousness. But if genuine steps are taken to remove U.S. citizens convicted of crimes to prisons in El Salvador, this removal would violate not only U.S. law but the U.S. Constitution.