Exporting justice: Could the U.S. send its prisoners abroad?
The idea of sending American prisoners to serve their sentences in foreign prisons might sound like a dystopian twist from a Kafka novel or a speculative screenplay. In a recent case involving the deportation of alleged gang members to El Salvador, Justice Sonia Sotomayor commented, “The Government takes the position that, even when it makes a mistake, it cannot retrieve individuals from the Salvadoran prisons to which it has sent them,” she wrote. “The implication . . . is that not only noncitizens but also United States citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal.” What if Trump adopted such a policy, as suggested by his expressed desire to send “homegrown criminals” to El Salvador? Could the United States legally contract with a foreign government to imprison U.S. citizens convicted of crimes committed on American soil? The answer, rooted in constitutional law and human rights doctrine, is a resounding no—at least not without serious legal, political, and moral consequences. “History is no stranger to such lawless regimes,” Sotomayor wrote, “but this Nation’s system of laws is designed to prevent, not enable, their rise.”
At the heart of the matter lie several constitutional protections, beginning with the Due Process Clauses of the Fifth and Fourteenth Amendments. U.S. citizens enjoy robust procedural and substantive rights under the law. Sending someone to a foreign prison—where procedural safeguards may be nonexistent, visitation rights severely limited, and language barriers insurmountable—would likely be considered a deprivation of liberty without due process of law.
Consider also the Eighth Amendment, which prohibits cruel and unusual punishment. Even if the foreign prison system met basic standards of decency, differences in penal practices and conditions could amount to a violation of constitutional norms. The bar isn’t merely whether a prison abroad is “functional” by local standards but whether it upholds the constitutional threshold of humane treatment as interpreted by American courts. In the case of Salvadoran President Nayib Bukele’s so-called Terrorism Confinement Center, it’s another Gulag that shocks the conscience. Amnesty International has characterized the situation in El Salvador as a “human rights crisis,” citing widespread arbitrary detentions, enforced disappearances, and torture. The organization has extensively documented inhumane conditions within detention centers like CECOT, including extreme overcrowding, lack of adequate medical care, and widespread ill-treatment amounting to cruel, inhuman, or degrading treatment. Human Rights Watch has similarly reported that detainees at CECOT are often held without due process, subjected to beatings, and denied access to legal counsel. The organization has also highlighted the use of CECOT to detain individuals deported from the United States, including Venezuelan nationals, without any chance to defend themselves, raising concerns about enforced disappearances and arbitrary detention .
While the United States does participate in international prisoner transfer agreements, these arrangements are based on mutual consent—from the sentencing state, the receiving state, and the prisoner. The International Prisoner Transfer Program (IPTP), for instance, allows U.S. citizens convicted abroad to serve their sentences at home, and vice versa. But these transfers are always voluntary and grounded in formal treaty obligations.
There is no precedent in American history for unilaterally exporting prisoners to serve sentences abroad for crimes committed in the United States. Nor is there any legislative or constitutional authority that would permit such a practice without the prisoner’s express consent. It is obvious, however, from the false statements of Trump, Secretary of State Marco Rubio, Attorney General Pam Bondi, and White House Deputy Chief of Staff Stephen Miller that they couldn’t care less about their lack of authority. They continue to insist that Kilmar Abrego García is indeed an M13 gang member even when the administration’s own lawyers have admitted in court that he was wrongfully deported and have failed to present any evidence that he violated any law.
These government officials, from Trump to his enablers, disregard the fact that punishment is one of the core functions of state sovereignty. Entrusting that power to a foreign jurisdiction—especially one with different norms, oversight mechanisms, or even incompatible legal philosophies—would constitute a dangerous delegation of sovereign responsibility. This would violate the nondelegation doctrine, which prohibits Congress from handing off core governmental functions to entities not subject to U.S. constitutional constraints. The problem is, the 119th Congress has shown nothing but subservience to Trump’s kingly ambitions.
Such a policy would also raise serious separation of powers concerns. Under the U.S. Constitution, the imposition and enforcement of criminal punishment is the result of a judicial process governed by statutory law. Judges sentence individuals to terms of imprisonment within the boundaries of laws enacted by Congress. Once the sentence is imposed, the executive branch (through the Bureau of Prisons) carries it out—but the nature, duration, and location of that punishment are judicially prescribed and statutorily bounded. Where the President unilaterally decide to send citizens to foreign prisons, he would be substituting his own judgment for that of both Congress and the judiciary. This would usurp the judicial power to impose sentences and bypass the legislative authority to determine how and where sentences are served. That’s a textbook separation of powers violation.
Congress has created a comprehensive statutory framework for sentencing and incarceration (e.g., the U.S. Sentencing Guidelines, Title 18, and BOP regulations). Nowhere does this framework authorize the executive branch to export punishment. If Trump (or any future president) tried to act outside or beyond that legal framework, it would constitute executive overreach—modifying, extending, or redefining punishment in a way that lacks legal authorization. The President may have clemency powers, but not punitive ones. The Constitution gives the President the power to pardon, commute, or reprieve sentences, but not to increase or relocate prisoners to foreign custody in harsher conditions.
Under a system of checks and balances, judicial review ensures that executive actions comply with the law and Constitution. But if a citizen is physically transferred to a foreign jurisdiction, access to federal courts and legal remedies is drastically curtailed. This effectively undermines the courts’ ability to hear habeas corpus petitions, enforce constitutional protections, and monitor the legality of incarceration conditions. In other words, executive control over where and how a sentence is served would circumvent the judiciary’s supervisory role. Of course, that is precisely what the administration is seeking to accomplish. Legal challenges would be inevitable, but likely unsuccessful because of the collusion between Trump and Bukele, for example, who claim that they are powerless to return the prisoners, as they have done in the case of Abrego Garcia––albeit not an American citizen, but that’s putting too fine a point on it.
If implemented, such a policy might functionally revive the long-abandoned practice of banishment. Historically, banishment was rejected in American law as both un-American and unworkable. It was condemned as cruel, inhumane, and prone to abuse. Reimagining it in the form of contracted foreign imprisonment would validate those same criticisms—and violate international human rights conventions, such as the International Covenant on Civil and Political Rights, to which the U.S. is a party. Again, however, one can be confident this administration would not care.
There’s also a disturbing equity issue: if such a policy were applied selectively—say, to certain classes of offenders or demographic groups—it would run afoul of Equal Protection guarantees and generate a two-tiered system of justice.
Though no such policy exists yet, one need not stretch the imagination too far to envision it surfacing under a Trump government eager to “reduce incarceration costs” or to “get tough” on crime by embracing punitive outsourcing. The precedent of extraordinary rendition—the secretive transfer of foreign nationals to countries willing to use torture during interrogation—shows how quickly legal norms can erode in the name of expediency or national security, as demonstrated in Guantanamo and Abu Ghraib.
If the goal is reform, not regression, the United States would do better to invest in rehabilitation, sentencing reform, and the humane treatment of prisoners at home than to entertain the notion of farming out punishment abroad. The point, however, is none of that, it’s how much cruelty can be visited upon immigrants––institutionalized schadenfreude.
In the final analysis, the exportation of justice is not only unlawful—it is un-American. Yet so, increasingly, is the conduct of our own government. This is not a condition to be accepted or normalized. It calls to mind the moment at the close of the Constitutional Convention in Philadelphia when Benjamin Franklin was famously asked what form of government the delegates had crafted. His reply, “A republic, if you can keep it,” was not a flourish but a warning. It underscored the inherent fragility of republican government and the essential role of an engaged, vigilant citizenry. A republic is not a self-sustaining machine; it is a living promise, contingent on the courage and persistence of those who would defend it.
