No, prisoners in the United States cannot be sent into exile
The Supreme Court has long held banishment as unconstitutional cruel and unusual punishment.
By Austin Sarat
On Monday, at the start of an Oval Office meeting with El Salvador President Nayib Bukele about his willingness to use his country as a penal colony for immigrants deported from the United States, President Donald Trump turned his attention to a group he called “homegrown criminals.”
As the two presidents walked into the meeting, Trump said to Bukele, “Homegrowns are next,” and urged him to build more prisons to house them. He explained, “We also have homegrown criminals that push people into subways, that hit elderly ladies in the back of the head with a baseball bat when they’re not looking, that are absolute monsters.
“I’d like to … get ’em out of the country.” Then, falling into his familiar black-and-white view of the world, the president continued, "I'm talking about violent people. I'm talking about really bad people. Really bad people. Every bit as bad as the ones coming in."
Sending even “really bad people” who have committed crimes out of the country means stripping them of their citizenship and the protection of the Constitution, including the prohibition of cruel and unusual punishment. Getting around that prohibition is why throwing “really bad people” in a Salvadoran gulag is so attractive to the president.
Though exile was a common punishment in the ancient world, it has fallen out of favor in a world that seeks to protect the rights and dignity of its imprisoned population.
Enter Trump, to whom those ideas seem quite foreign. In his view, rights and dignity have little place in punishment. Severity is all that counts.
His Jan. 20 executive order on public safety displayed that view. He directed the attorney general to ensure that the death row prisoners to whom former President Joe Biden granted clemency “are imprisoned in conditions consistent with the monstrosity of their crimes and the threats they pose.”
His latest musings about sending “homegrown criminals” to El Salvador take that desire one step further. As the philosopher Jonny Thomson argues, “The true brutality of … exile more broadly — is that it turns you into a non-desirable and untouchable. You are reduced to your crime, and every vestige of your old life is taken from you. Exile is a kind of death of who you once were.”
In the 19th century, that kind of civil death was an integral part of the punishment for everyone convicted of a serious crime in the United States. For example, in 1871, the Supreme Court of Virginia explained that “while undergoing that punishment … during his term of service in the penitentiary, [a prisoner] is in a state of penal servitude to the State. He has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him.”
He is, the court continued, “civiliter mortuus (civilly dead); and his estate, if he has any, is administered like that of a dead man.”
But by the middle of the 20th century, the idea that a person convicted of a crime was to be treated as a slave of the state and “civilly dead” had fallen out of favor in American law. In its stead, courts held that “prisoners retain all rights enjoyed by free citizens except those necessarily lost as an incident of confinement.”
Enter President Trump, who would turn back the clock, send “homegrown criminals” to rot in El Salvador’s brutal prisons, and violate the Constitution along the way.
In 1958, in Trop v Dulles, the Supreme Court made clear that neither exile nor stripping someone of their citizenship could be reconciled with our constitutional tradition. As the court put it, “Citizenship is not subject to the general powers of the National Government and therefore cannot be divested in the exercise of those powers.”
“Citizenship,” it said, “is not a license that expires upon misbehavior.” And, as if anticipating what Trump told Bukele, the court stated: “The deprivation of citizenship is not a weapon that the Government may use to express its displeasure at a citizen's conduct, however reprehensible that conduct may be.”
What Trump wants to do, the court has said, would amount to “the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual … [their] political existence.”
Exile or banishment, it concluded, “strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself.”
Such treatment, the court decided, is cruel.
In 1963, the court again held that deprivation of citizenship could not be used as punishment, this time for draft dodgers. Four years later, it reaffirmed its holding in a case involving “efforts to strip Americans of their citizenship during the Cold War for engaging in certain political activities, like voting in foreign elections or joining the Communist Party.”
“Congress,” it said, “has no general power to revoke American citizenship.”
Noting the special bond between Americans and their government, which protects every citizen against all manner of destruction of their rights, the court held that only citizens themselves “may voluntarily relinquish their citizenship.”
It called that principle “sacred.”
That is why many states prohibit banishment from their jurisdiction even if the banished person can remain in the country. That is why the law does not allow “a federal court to sentence a defendant to serve their sentence overseas. Nor is there any statute that allows the president to unilaterally remove a U.S. citizen to another country at a whim.”
As we already know, the president seems intent on reshaping our government so that nothing prevents him from turning his whims into policy. Here, as with many other actions taken by the Trump administration, the stakes are high.
If the president gets away with violating the rights of “homegrown criminals” by sending them to El Salvador, he will move one step closer to making exile a possible punishment for anyone who crosses him.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.
Unfortunately, I no longer take any comfort in the notion that something that Trump decides to do can’t happen because it is against the law or unconstitutional. Yes, deporting American citizens may seem a bridge too far, but unless there is a supreme court willing to put an end to this foolishness where Trump has neither accountability nor limits on his unconstitutional powers, then anything is possible. Ditto for the notion of him serving a third term.
We have a chief executive who "seems intent on reshaping our government so that nothing prevents him from turning his whims into policy". And his whims include anyone and anything that crosses him or makes him angry or puts a dent in his megalomaniac notion of himself or some scheme he dreams up to showcase his power. But I ALWAYS put the onus on ENABLERS. Without those who enacted Hitler's policies, without those who follow Putin's lead, without U.S. justice and state departments that use their domains as their leader's fiefdoms, NONE of these demented policies could come to fruition. Yes, I'm talking to you Bondi, Hegseth, Rubio, Smith, Lutnick et al and the ENTIRE Republican Congress. A pox upon you all.