As the Trump administration rounds up people it alleges to be illegal aliens and gang members, deports them to El Salvador, and pays to imprison them there without convicting them of any crime, constitutional challenges have focused on the Fifth Amendment; the administration appears to have deprived many deportees of liberty without due process. Scarce attention has been paid to another relevant part of the Bill of Rights: the Eighth Amendment's prohibition on inflicting 'cruel and unusual punishment,' a limit on state power that applies regardless of whether the target is a citizen. Intuitively, an Eighth Amendment challenge seems promising. El Salvador's prison system is notoriously cruel: Dozens of inmates have died 'as a result of torture, beatings, mechanical suffocation via strangulation or wounds,' according to a 2023 report from the human-rights group Cristosal, and Human Rights Watch says that it has documented 'torture, ill-treatment, incommunicado detention,' and more....
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