A clever lawyer could probably make an argument from Warren’s opinion in Trop v Dulles, regarding the need for the Court’s definition of cruel and unusual punishment to evolve with society.
ive only ever heard of the trop standard applied to death penalty cases (disabled people and children) and life sentences for children.
and iirc that argument failed to prevent the execution of someone with advanced memory loss 💀 so it's still fine to kill senile old people
the issue in dulles is (the propriety of) the US gov't imposing statelessness by denationalizing natural-born USCs—it's a substantive opinion about criminal punishment. abrego-garcia's case is a procedural question limited to the realm of civil law
This case, perhaps. But in the bigger picture, 8A should have some bearing on whether the government can contract with a foreign power to incarcerate people in a notorious slave labor prison.
the people affected are not criminals and not being charged with a crime. it's not a punishment, it's a civil process, and 8A is only relevant WRT criminal law (asterisk for "excessive fines" grey area)
korematsu was also a 5A issue, same for hamdi and boumediene, etc
The act of deportation itself doesn’t fall under the Eighth Amendment but I think you’d agree that doesn’t give the government a blank check to starve or torture or otherwise abuse detainees while they’re awaiting deportation.
An Warren wrote in the majority opinion for Trop v Dulles that the Eighth Amendment's meaning of cruel and unusual must change over time and "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society". I’d say you could make a novel argument for this.
The ACLU used due process directly. This seems to make sense given that the government has long held people for one reason or another there was likely a legal framework specifically for people waiting to be deported.
Yes. Actually, there is a limit on how long the USG can detain people waiting for deportation. There was a case in court about Venezuelan deportees that Venezuela wouldn't take which I think is how they ended up in El Salvador.
If not the 8th A, may habeas corpus proper.
From my understanding by effectively saying "Oh poo. We did break the law sending these people to El Salvador didn't we? Well. Nothing we can do now. Out of our custody. 🤷🏻"
The worst part is the SCOTUS seems sympathetic to this...
that's just what procedural opinions sound like lol. xinis's order was pretty much "do something to facilitate his return and come back to show me what you did" so it makes sense they'd use that verbiage
Many have been ordered to be deported by immigration judges, which is typically civil and doesn’t fall under the 8A, but I don’t think it’s a stretch to argue that deporting a person when they’ll knowingly face abuse and/or death as a direct result crosses the line into punishment.
I go back to Warren’s argument in Trop v Dulles. The definition of cruel and unusual punishment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society". Hard to argue that our society isn’t drastically changing right now (though not “maturing”)
True, I think he meant we should become ever more benevolent, but the idea that we also need to be ever vigilant against innovative barbarism is a good one.
Shit....that's a bout the last Amendment violation one ends up with after falling from the violation tree and hitting a bunch of branches on the way down. How is it not a whole host of them?
They had no trial, so this isn't "punishment". They have been removed to El Salvador, and so they aren't being imprisoned by the USA. The 8th amendment doesn't apply.
Now, of COURSE it applies, but John Roberts is a fascist, and that's how he'll parse the situation into fascist-friendly legalese.
8A doesn't apply this isn't a criminal issue and its application to civil penalties is very limited (iirc just fines and forfeitures.) the conflation with crime is intentional
5a does apply, and i'm actually inclined to believe CJR would rule favorably
I don't think it should be viewed, even in legalistic parsing, as possible to allow cruel and unusual punishment simply by refusing due process. That same error is being made again and again — if you find a "legal" way to refuse due process all this unconstitutional madness is "allowed" somehow.
Well it should work in tandem with the 5th to do that. Can't take anything from someone (which punishing them does) without due process, if due process results in a punishment, then you find yourself at the 8th.
8a is about fines and prison sentences, there's no inherent metaphysical connection between it and 5a. it's also not relevant to civil issues like removals insofar as they are not punishments for a crime
(And in the civil/criminal distinction, sure? But if certain levels of fines and forfeitures are prohibited for civil matters by the 8th amendment, certainly indefinite enslavement due to visa violations or speech "crimes" would be as well...)
it's specifically not a deportation lol, but regardless you can't bring an 8A claim without standing and nobody with standing is currently capable of bringing suit
you might want to look at jgg v trump docket
Deportation is an explicit 4th Amendment violation. Deporting people without due process is illegal. The deportation of Kilmar Garcia is explicitly illegal.
because a vast majority of people in the judiciary are also compromised if you look at the legislature there are a handful of people on the peoples side and a majority on the side of the christian nationalists its the same for the courts we are hoping somebody saves us and nobody is going to
cecot would definitely fall under cruel and unusual punishment which is partially classified as disproportionate to the crime in this case for most of the 200+ detained there is no crime so it is disproportionate
Picking my kids up from preschool but interested to read it. Thanks for sharing. The blatant human rights abuses aside, I’d think it’d be an 8th Amendment violation to imprison citizens in any foreign country because you’re effectively cutting off reasonable access to visitation and legal counsel.
Under current jurisprudence, yes. When the judiciary ruled in the past that the 8th amendment didn’t apply to civil cases of deportation I’m not sure they considered a US regime invested in violating migrants human rights in the process.
Because the 8th amendment protects against cruel and unusual punishment in the US, not El Salvador. Due process is the main issue in these cases right now.
I should have explained this in more detail. From a legal standpoint, “cruel and unusual punishment” only applies after someone’s been convicted. If someone’s mistreated before trial, that’s a due process issue not the Eighth Amendment.
It seems the fact that deporting someone to a prison (do we even know if they are actually criminals?) in a foreign country is cruel and unusual punishment
Especially when the victim is legal or legally pending refugee status and should be subject to protections offered to citizens. A Trump presidency=cruel and unusual punishment for all Americans. Investigate voter fraud in swing states. Bullet ballots, 60% limit on recounts fiddled with by Starlink.
Thank you for that👍
I’m mostly curious where they got these people - were any of them taken from a federal prison and sent there? The Trump regime keeps calling them criminals. It’s scary but I’m refusing to give them the satisfaction of being scared.
But even if you think that immigration involves civil penalties and therefore it’s not 8A territory, aren’t there cases that suggest that overly punitive /fines/ trigger an 8A analysis? These aren’t actually “deportations”. Ppl are ejected into prison & slavery. It’s inherently a criminal penalty.
That’s the loophole isn’t it? Immigration is typically civil in nature and 8A doesn’t even come in to play. Brutal penalties with no constitutional limits other than an entitlement to due process.
But it isn’t a loophole I don’t think. There’s a proportionality analysis involved in the “excessive fines” clause so why not punishment? Putting someone in prison via a civil process isn’t a life hack. Some of these banishments are based on traffic violations. https://www.theguardian.com/us-news/2025/apr/07/trump-student-visas-deportation
Let's add the 13 Amd for good measure, which requires due process before involuntary servitude, doesn't require conviction or citizenship. What's up for 'debate' is whether deportation *from the US* to a slave camp outside the US is covered.
Very plausible, but like you said, it still requires due process before you even get to a 13A analysis. If the administration’s ignoring SCOTUS, the rest becomes a futile argument. Just my opinion.
...unless the court declares gov employees and contractors enabling the plainly unlawful 'removals' as acting 'ultra vires.' They can be made subject to personal civil and criminal liability, and subject to defenses, under state and federal law. Trump can't use pardons for civil or state matters.
If we have a contract with a foreign sovereign to incarcerate people on our behalf, can we not argue that he is acting as our agent in dispensing punishment?
Also worth noting that we’re signatories of the UN Convention Against Torture. Deporting migrants to face torture in another country would be a huge problem as far as that goes.
We certainly can. And I suggest leaning into the wording “unusual” in the 8th
Yes it’s cruel but the unusual part is one that can be proven and pushed legally? What do you think
Being placed on an airplane, following which all rights and judicial supervision will be extinguished, is the act that violates the 8th amendment. The cruel and unusual act is the illegal stripping of all rights. You don't even need the actual hell hole that is the foreign concentration camps.
Can’t they both be an issue? If El Salvador is being paid by the United States to hold people on our behalf, it would seem our 8th amendment should extend to those being housed on our behalf. If CECOT cannot meet our 8th amendment standards they should be barred from housing people on out behalf.
Since the 8th amendment applies to punishment after conviction, it likely doesn’t cover people held without due process. But since the U.S. is funding and directing detention at CECOT, we may be responsible for the conditions. It’s legally murky especially with the people running this shitshow.
It may be the “unusual” part could be pushed in a legal sense. Certainly it would be tested as it’s so broad. And this is how they are using it in their way. Pushing the boundaries of the word.
It is cruel but more unusual
Without establishing that they are in fact non-citizens to begin with, that makes it even worse. At that point anyone can be disappeared -- how are you gonna prove you're a citizen, even if born here, on the spot when you're being black-bagged into a van?
Especially when it's apparently 'for life'-regardless of what you did? Someone pointed out that being in the US illegally is a misdemeanor with a 6-month sentence.
Maybe point your missing is before Donald took office, people had to appear in court, with right to defend themselves against any Charges or Accusations BEFORE they went to prison. Now people can simply be removed from street and incarnated in a foreign country on a rumour or questionable tattoo
The Court might just do that thing where they say it's not unusual because it will have happened to a bunch of people by the time the case gets to them, again.
I'm across the pond but from here it looks like your Constitution isn't worth the paper it's written on. Trump has trashed it, the Constitution will not ride in on a white horse and save you. You need to save the Constitution if it's really that valuable to you as a nation.
Rise up!
It's the only real choice we have, but they prefer to bicker here & carry on with their lives...they aren't Latino, and surely THEY will NEVER be targets...so, they'll just watch.
What's happening is truly dreadful and l feel for the majority of Americans. My grandmother who held dual British/American citizenship would be devastated, she loved her second country, God rest her soul.
Comments
https://demodirge.substack.com/p/republicans-defy-you-die-but-why
It’s almost as if they’re trying to circumvent the Constitution of the United States.
and iirc that argument failed to prevent the execution of someone with advanced memory loss 💀 so it's still fine to kill senile old people
the issue in dulles is (the propriety of) the US gov't imposing statelessness by denationalizing natural-born USCs—it's a substantive opinion about criminal punishment. abrego-garcia's case is a procedural question limited to the realm of civil law
I say it applies.
korematsu was also a 5A issue, same for hamdi and boumediene, etc
If not the 8th A, may habeas corpus proper.
The worst part is the SCOTUS seems sympathetic to this...
lowkey wanna see xinis send marshals on the DOJ's ass
Sounds more like "well we're not gonna fight the executive if they really insist" to me.
They could have put Abrego Garcia on a beach in Tahiti and it would be an unconstitutional violation of his due process rights.
Now, of COURSE it applies, but John Roberts is a fascist, and that's how he'll parse the situation into fascist-friendly legalese.
5a does apply, and i'm actually inclined to believe CJR would rule favorably
you might want to look at jgg v trump docket
https://stonedalgo.blogspot.com/2025/02/el-salvadors-offers-to-imprison-us.html
These people haven't committed, let alone been convicted of, any crime.
The fact that they are being punished *at all* is the problem.
I’m mostly curious where they got these people - were any of them taken from a federal prison and sent there? The Trump regime keeps calling them criminals. It’s scary but I’m refusing to give them the satisfaction of being scared.
Yes it’s cruel but the unusual part is one that can be proven and pushed legally? What do you think
It is cruel but more unusual
https://www.law.cornell.edu/wex/cruel_and_unusual_punishment#:~:text=Deliberate%20Indifference,not%20receive%20adequate%20medical%20care.
Last I checked every state court dropped their charges against Trump once the SCOTUS ruling hit the docket
https://acrobat.adobe.com/id/urn:aaid:sc:US:58147214-7b1d-440a-8859-e113dda7e4e1
Rise up!