Banishing U.S. Citizens to El Salvador Puts American Values Last

The recent proposal by El Salvador’s President Nayib Bukele to house convicted felons from the United States—including U.S. citizens—in the country’s notorious CECOT mega-prison, also known as the Terrorism Confinement Center, raises profound constitutional and human rights concerns. While framed as a cost-saving measure and a solution to crime, this idea clashes with fundamental American legal principles, including due process, the Eighth Amendment’s prohibition on cruel and unusual punishment, and the broader framework of rehabilitation and reintegration into society.

At the heart of this issue is the U.S. Constitution’s guarantee of due process and equal protection under the law. The notion that American citizens convicted of crimes could be transferred to a foreign prison system—one that operates under vastly different legal standards—undermines the fundamental rights to which they are entitled. The Supreme Court has long affirmed that incarceration does not erase constitutional protections. If American prisons are required to adhere to these rights, outsourcing incarceration to a foreign country that does not meet these standards is legally and morally dubious.

Equally troubling is the potential violation of the Eighth Amendment. Reporting details overcrowding, indefinite detention, and brutal conditions in CECOT including many individuals being confined to their cell for all but 30 minutes a day, raising serious concerns about cruel and unusual punishment. The American legal system has long prohibited inhumane treatment of incarcerated individuals, and the transfer of people in U.S. prisons to a facility where these protections are uncertain at best could expose the government to legal challenges.

Furthermore, this proposal contradicts the principles of rehabilitation and reentry that anchor our correctional system. One of the key purposes of incarceration—aside from accountability—is to prepare individuals for their return to society. Transferring incarcerated Americans to a foreign prison severs their connection to family, legal representation, and reentry programs that are crucial for a successful reintegration. Instead of promoting rehabilitation, such a practice would create further isolation and recidivism risks. Ironically, it was President Donald Trump who signed the landmark First Step Act in 2018, which facilitated successful reentry by requiring, with some exceptions, people in federal prison to be housed within 500 miles of their home.

There are also serious legal questions about whether the U.S. government has the authority to carry out such a transfer. The vast majority of those incarcerated in the U.S. are held in state facilities under the jurisdiction of state governments, meaning that any policy to relocate those not in federal prisons to El Salvador would require cooperation from individual states. Even for people in federal custody, existing laws governing transfers generally apply to voluntary relocations with treaty agreements—not unilateral decisions by an administration.

The legal morass created by this scheme doesn’t end there. There is no enforcement mechanism by which U.S. courts can determine whether El Salvador or any other country is complying with constitutional obligations such as the right to counsel and the right of incarcerated individuals to health care on par with the standard medical procedures in this country. Also, Congress has never authorized shipping U.S. citizens to other nations for incarceration, making it questionable whether the executive branch has the authority to unilaterally take this draconian step.

Beyond the constitutional and legal issues lies a profound moral question: What does it say about our commitment to justice if we are willing to outsource our prison population to a country with a justice system so flawed that it conducts mass trials that, in one case, have involved nearly 500 defendants? While the U.S. criminal justice system is far from perfect, addressing its shortcomings requires reform, not abdication of responsibility.

Instead of exporting our prison population, we should focus on evidence-based solutions that reduce recidivism, ensure humane conditions, and uphold the values embedded in our Constitution. One way to reduce costs is to reduce recidivism so that fewer people return to prison. This includes implementing effective interventions behind bars, such as cognitive behavioral therapy to change criminal thinking patterns as well as education and workforce programs to increase individuals’ odds of employment upon discharge. Family visitation is also correlated with lower recidivism, as it ensures that those in prison feel someone in the free world cares about their success. These strategies are virtually impossible to carry out in other countries, especially one like El Salvador.

The promise of American justice is rooted in the belief that even those who have made mistakes deserve fairness, dignity, and the opportunity for redemption. Sending our incarcerated citizens to a foreign mega-prison would betray that promise—and set a dangerous precedent that erodes constitutional rights for all.

Khalil Cumberbatch and Marc A. Levin, Esq. co-lead the Centering Justice Initiative at the Council on Criminal Justice, where Cumberbatch is director of engagement and partnerships and Levin is chief policy counsel. They can be reached at mlevin@counciloncj.org and khalil@counciloncj.org.

The views expressed in this article are the writers’ own.

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