On April 14, before a joint presser with the president of El Salvador, U.S. President Donald Trump was caught on a hot mic saying that "home-growns are next. The home-growns. You gotta build about five more places. It's not big enough." Trump was referring to CECOT, El Salvador's notoriously harsh "terrorist confinement center" designed to hold between 20,000 and 40,000 inmates.
Prisoners at CECOT are kept either in large, crowded cells or in dark, solitary confinement. Education, visits, and recreation are prohibited, while prisoners are forced to work in workshops to make the prison "self-sustainable." This is according to Salvadoran President Nayib Bukele, who often boasts about the harsh conditions prisoners face there. There is no documented case of a prisoner being released from CECOT.
Trump was suggesting that U.S. citizens could be deported there. In March, he floated the idea on Truth Social that anyone caught vandalizing Teslas or Tesla dealerships could be deported to El Salvador. However, this was taken as more of a fantasy or trolling than a policy plan. But Attorney General Pam Bondi has acknowledged she is exploring a plan to deport U.S. citizens.
A Violation of Federal Law
Federal law prohibits deporting incarcerated U.S. citizens. Under 18 U.S.C. § 4042, Congress has said that the Bureau of Prisons shall "provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons charged with or convicted of offenses against the United States." The Bureau of Prisons oversees the care of all federal prisoners.
What about private, for-profit prisons? In 2021, President Joe Biden issued an executive order prohibiting federal for-profit prisons. Trump revoked this EO early, but as yet, few federal prisoners are in for-profit prisons. Regardless, federal for-profit prisons contract with the Bureau of Prisons. Several Supreme Court precedents support the idea that prisoners under the care of for-profit prisons are afforded the same constitutional protections as any other prisoner. This would not be the case with CECOT or any foreign-run prison. The Bureau of Prisons would have no oversight on prisoner treatment there.
The only possible exception to the prohibition on removing U.S. citizen criminals from the U.S. is if the Bureau of Prisons begins running or overseeing a prison on foreign soil. But this is not the plan under consideration.
A Violation of the Eighth Amendment
What if Congress amended federal law? Deporting prisoners to El Salvador would still be challenged under the Eighth Amendment of the U.S. Constitution, which prohibits "cruel and unusual punishment." The conditions at CECOT and other El Salvadoran prisons, which have drawn international scrutiny for human rights violations, including allegations of torture, would be a violation of the Eighth Amendment.
Will It Happen Anyway?
It's not clear. After the U.S. Supreme Court issued a 9-0 order for the White House to "facilitate" bringing back Kilmar Abrego Garcia, whom the White House has acknowledged was deported to CECOT due to an "administrative error," the White House has so far refused to comply. The Trump administration could begin deporting criminals regardless of federal or constitutional law. At least, as of yet, the White House has refused to rule out the possibility.
Related Resources
- Supreme Court Allows Deportations Under Alien Enemies Act (FindLaw's Federal Courts)
- The Eighth Amendment (FindLaw's Learn About the Law)
- Are More Deportations "By Mistake" On the Way? (FindLaw's Law and Daily Life)
