Despite the blizzard of commentary involving the government’s recent invocation of the Alien Enemies Act and the fate of Kilmar Abrego Garcia, to my knowledge almost no one seems to have made a seemingly obvious legal (and moral) point. Sending alleged members of the Tren de Aragua gang to CECOT, a maximum security prison in El Salvador, constitutes punishment, and therefore cannot be imposed without trial under the Fifth and Sixth Amendments.
The omission is perhaps understandable given how novel the administration’s actions have been. Although many immigrants rights advocates and scholars, including me, had closely analyzed the legality of invoking the Act in the months before the election, no one anticipated El Salvador’s involvement. And it probably doesn’t help that the attorneys litigating the challenges are primarily versed in the constitutional rights of immigrants and national security law, in which the Supreme Court long ago decided deportation itself is not punishment. Instead, much of the recent development in litigation alleging unconstitutional punishment has involved state treatment of sex offenders.
Nonetheless, the claim in the El Salvador removal cases is compelling, as other attorneys and I argued recently in the case of Daniel Zacarias Matos, one of the men who narrowly managed to escape being put on the plane to CECOT because a federal judge in South Texas enjoined his removal only hours before the planes left.
As we explained, the prohibition on punishment without trial applies to everyone under the U.S. Constitution—including people who have conclusively lost the right to be in the country and people deemed enemies during a war. Even during the Chinese Exclusion Era, when the Supreme Court upheld several other draconian anti-Chinese immigration laws, it struck down a provision that authorized imprisonment at hard labor without trial for people ordered removed. Similarly, while the Supreme Court has upheld the preventive detention of enemy combatants, it has made clear that such detention cannot include punishment. On the contrary, as the Court explained, punishing enemy soldiers without trial is a war crime.
That leaves only one element in the legal equation: how do we assess whether sending someone to CECOT, the notorious maximum security prison for alleged Salvadoran gang members, constitutes punishment?
One might think the answer self-evident. Everyone who knows about CECOT knows that it is not a civil detention center, and the inhumane conditions there have been well-documented. Detainees spend 23.5 hours a day in communal cells that have no furniture beyond rows of stacked metal bunks without mattresses or pillows. The lights are apparently always on, making sleep extremely difficult. El Salvador’s own justice minister has said the only way out is in a coffin. (See also Chief Judge James Boasberg’s summary (pp. 33-34))
But of course law sometimes obscures what reality plainly reveals. So what does the legal doctrine concerning punishment have to say on the issue?
In general, the law in this area does not create robust constraints. The Supreme Court has tolerated a number of sanctions that might feel like punishment, including most obviously the potentially-indefinite detention of certain people convicted of child sex crimes. Under the governing test, where the legislature has made clear its intent to establish a civil sanction, only the “clearest proof” will lead a court to reject that classification and instead treat the sanction as punishment.
Nonetheless, the punishment doctrine does contain a few meaningful safeguards. First, the government cannot state that it intends to punish, but refuse to provide the protections that must accompany its imposition, including most obviously a jury trial. That rule does not provide much protection in most situations, however, as government officials can simply disclaim any intent to punish and thereby evade constitutional constraints. For example, the Supreme Court upheld post-conviction sex offender detention in part because the state had authorized it in the probate code, and at least gestured toward providing treatment in order to “cure” people of pedophilia, which it characterized as a serious mental disorder. But in those rare cases where the government actually admits that its purpose is to bring retribution to wrongdoers, or to make an example of them to deter others, courts view those policies as ones that must be effectuated through the mechanisms of criminal trial.
Two other constraints on government action in this context also warrant mention. First, when the government purports to confine someone (that is, to incarcerate them) for reasons other than punishment, the conditions of confinement must be reasonably related to their purpose. This is why, for example, the Supreme Court has held that people who do not have a mental illness cannot be held in a mental hospital. In keeping with that rule, where conditions in a facility are identical to those used for convicted criminals, that generally indicates punitive intent, because civil detainees are generally entitled to “more considerate treatment.”
Of course, as anyone familiar with our jail system knows, pre-trial detainees and people serving short sentences are often housed together. The Supreme Court has also upheld pretrial detention based on dangerousness where it found no stated legislative intent to punish. Nonetheless, where the state confines someone in conditions utilized for maximum security prisoners with no other ostensible purpose for imposing those conditions, a court would likely find such conditions strongly suggestive of punitive intent.
Second, when the government confines someone to stop conduct the individual cannot control (or for which they cannot be held responsible for other reasons), courts traditionally have not viewed such detention as punishment. And the converse is also true. If the government confines a group of people on the basis of intentional conduct (scienter), that counsels in favor of treating it as punishment. That understanding reflects long-held principles in our legal system that the law does not punish wholly involuntary acts, but does punish voluntary ones. This is why, in the sex offender context, the Supreme Court has required a showing of an individual’s lack of control when the state seeks to place people in civil detention based on the risk they will commit sex offenses. That principle also explains the rationale behind the detention of enemy combatants under the law of war itself. As the Supreme Court explained in a case about prisoners held at a military base at the close of World War II, “[t]he alien enemy is bound by an allegiance which commits him to lose no opportunity to forward the cause of our enemy; hence the United States, assuming him to be faithful to his allegiance, regards him as part of the enemy resources. It therefore takes measures to disable him from commission of hostile acts.” Where the government imposes additional restrictions, beyond those needed to “disable” a foreign soldier from returning to the fight, however, those restrictions are presumptively punitive.
Applying those rules here confirms what common sense should already tell us: the government’s plan to send Venezuelans accused of being “enemy aliens” to CECOT is unconstitutional punishment without trial. Most obviously, high-level Executive Branch officials touting the plan have repeatedly said that its purpose is to punish. Perhaps the clearest evidence of this comes from DHS Secretary Kristi Noem, who visited CECOT after the initial flights sending Venezuelan citizens there. She produced a video in which she thanked the Salvadoran government for “incarcerat[ing] [alleged Tren de Aragua members] and to have consequences for the violence that they have perpetuated.” She added: “I also want everybody to know, if you come to our country illegally, this is one of the consequences you might face” (emphases added). She captioned the video with another telling statement: “President Trump and I have a clear message to criminal illegal aliens: LEAVE NOW. If you do not leave, we will hunt you down, arrest you, and you could end up in this El Salvadorian prison.” Similarly, Secretary of State Marco Rubio described the agreement as one for people convicted of crimes, stating El Salvador had agreed to “accept for deportation any illegal alien in the United States who is a criminal from any nationality . . .” Salvadoran President Bukele described it the same way, stating: “[w]e are willing to take in only convicted criminals (including convicted US citizens) into our mega-prison (CECOT) in exchange for a fee.”
Beyond these statements of intent, everything we know about the conditions of confinement at CECOT suggests it is designed to punish, rather than simply to “disable” the people held there. The Salvadoran government uses the supermax facility as a prison for convicted Salvadorans, and the horrific conditions there—including the absence of recreational time and inhumane sleeping conditions, among others—make clear that it is a site of punishment.
And, unlike traditional “enemy alien” wartime restrictions, which attach to people based on their nationality alone, this Administration’s novel version applies only to those Venezuelans who are members of Tren de Aragua, which people choose to join through a voluntary act. In other words, as the Supreme Court said in a case about punishment, “it comes into play only on a finding of scienter.”
If the foregoing is correct, then our government cannot send people to CECOT without the panoply of protections required by the criminal law and the Fifth and Sixth Amendments. Among many other changes to its policy that would be required, the government would have to charge them with a crime—one written down in a criminal statute—rather than simply alleging they are members of a designated foreign terrorist organization. And then of course the government would have to provide them with counsel and ultimately prove those charges through jury trial.
The present administration is of course unlikely to do any of this. Given that, one might wonder what legal purpose would be served by seeking such a ruling. After all, as many others and I have argued, there are strong reasons to believe the administration has no authority to invoke the Alien Enemies Act at all in response to its imaginary “invasion.” Nor is it obvious that the government could outsource punishment to the Salvadoran government, even if it could charge some crime and secure conviction against the people it has labeled Tren de Aragua members.
Nonetheless, I think the overwhelming evidence suggesting that the government’s conduct is punishment without trial in violation of the Fifth and Sixth Amendments warrants significant attention, because a favorable judicial ruling on the theory I describe would mean a great deal to the people who have been subjected to the horrors of the administration’s purported Alien Enemies Act invocation. The three men I have represented in habeas litigation under the Act were all scared to return to Venezuela, but they were absolutely terrified of being sent to CECOT. They firmly believed, for good reasons, that there would be no coming back from that place. That alone is reason to seek a ruling that the government’s current course of action constitutes punishment.