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. Sending deportees to a country other than their own and paying for them to be imprisoned among violent criminals, with no fixed sentence or release date, is highly unusual, if not novel, in American history. High-ranking U.S. officials have explicitly stated that their intent is to inflict punishment for illegal entry and other alleged crimes. After visiting El Salvador, Kristi Noem, the secretary of homeland security, said that she wants to incarcerate even more deportees in the country so that they “pay the consequences for their actions of violence.”

Yet when I recently consulted roughly a dozen legal experts, including Eighth Amendment scholars and defense litigators, even those who agreed with me that the deportees’ Eighth Amendment rights are being violated said that focusing on due-process claims is a safer legal strategy.

Read: El Salvador’s exceptional prison state

Partly, El Salvador’s de facto control of the prisoners raises complicated jurisdiction issues. But there’s another, more fundamental reason. Under long-established Supreme Court precedent, mere deportation is not considered a punishment for Eighth Amendment purposes. And though the Trump administration is not merely deporting people—it is paying El Salvador to incarcerate them—the Supreme Court has been reluctant to recognize cruel and unusual treatment as punishment, even when that treatment is inflicted by an agent of the state, unless the treatment was imposed as a penalty after a criminal conviction. For example, the Court has held that corporal punishment in school settings does not constitute punishment, nor does the detention of severely mentally ill people in rehabilitative institutions.

The late Justice Antonin Scalia captured this distinction in a 2008 interview with the 60 Minutes correspondent Lesley Stahl. When Stahl asked Scalia whether the prohibition on cruel and unusual punishment would apply to a prisoner at Abu Ghraib who was brutalized by American law-enforcement officials, Scalia replied, “To the contrary. Has anybody ever referred to torture as punishment? I don’t think so.” Torture is intended to extract facts, not to punish, he argued, so the Eighth Amendment would not apply.

This notion that “Eighth Amendment scrutiny is appropriate only after the State has secured a formal adjudication of guilt,” as a 1983 Supreme Court case put it, creates a perverse incentive for the government. If the state deprives purported criminals of their due-process rights and imprisons them without charging or convicting them, as the Trump administration is now doing, that makes it easier to deprive those individuals of their Eighth Amendment rights, too; any cruel and unusual treatment that the government inflicts isn’t technically considered punishment. As a result, under the status quo, people convicted of no crime at all have less Eighth Amendment protection than criminals convicted of the most heinous acts.

To remedy that unjust and despotic disparity, the Supreme Court should clarify that the government cannot subvert any part of the Bill of Rights by skipping trials and sentences. Given a claim by a deportee, it should rule to protect their Eighth Amendment rights.

Both the original meaning of “cruel and unusual punishment” and some of the most frequently cited modern Eighth Amendment jurisprudence would bolster a claim by the deportees, according to several of the experts I spoke with.

The Constitution’s protection against cruel and unusual punishment has its roots in a British common-law tradition: Judges were understood not to make law, but rather to discover it by identifying customs and precedents that gained legitimacy through enduring acceptance. In an essay titled “Originalism and the Eighth Amendment,” the University of Florida law professor John F. Stinneford explains that in the 17th and 18th centuries, cruel was understood to mean “unjustly harsh,” and unusual meant “contrary to long usage.”

When adopting the same language, early American lawmakers were expressing the view that “because the common law was presumptively reasonable, governmental efforts to ‘ratchet up’ punishment beyond what was permitted by longstanding prior practice were presumptively contrary to reason,” Stinneford writes. The death penalty, for instance, was seen as reasonable due to its long usage in England and the colonies. But new “significantly harsher” varieties of punishment were not, especially when they were seen as disproportionate to the offense; the examples Stinneford cites from England and America include whipping and pillorying as a punishment for perjury and excessive floggings as a punishment for illegal gambling.

By those standards, originalists should find the Trump administration’s actions highly suspect. Being transferred to a brutal prison system where one has no recourse or rights, no matter how badly one is treated, with no apparent limit on how long one might be held, is a fate significantly harsher than what has long been customary for, say, a Venezuelan who enters the United States illegally and joins a gang. President Donald Trump’s policy is precisely to ratchet up the effective punishment.

Turning to case law, Trop v. Dulles, an influential Eighth Amendment case decided in 1958, offers a highly relevant precedent. Albert Trop was a private in the U.S. Army during World War II. In May of 1944, while serving in Casablanca, Morocco, he was confined to a stockade for a breach of discipline, escaped, and wandered, cold and hungry, until the next day, when he decided to turn himself in. Convicted of desertion, he was sentenced to three years of hard labor. Years later, when he was back in the United States and applying for a passport, he was told that, per a provision in the Nationality Act of 1940, his desertion in wartime had triggered the loss of his citizenship.

David A. Graham: Due process for me, not for thee

Ultimately, the Supreme Court restored his citizenship, finding that “denationalization as a punishment is barred by the Eighth Amendment.” Although Trop hadn’t suffered “physical mistreatment” or “primitive torture,” denationalization inflicted the “total destruction” of his political existence, leaving him stateless and without rights in whatever country he might find himself. “In short, the expatriate has lost the right to have rights,” the Court reasoned, and is subject to “a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated.”

Notice that Trop was never forcibly expatriated. Fear and distress at the mere possibility of being “without rights in whatever country he might find himself” was sufficient to meet the threshold for cruel and unusual punishment. Today, the bulk of the deportees to El Salvador, most of whom are Venezuelans, are already at the mercy of a country not their own. President Trump and Salvadoran President Nayib Bukele have claimed that, once the United States transfers a prisoner to Salvadoran custody, neither president can grant his release. To echo the Court’s Trop ruling, the deportees know not what abuses may be directed against them. The majority of the Court in Trop also objected that “the punishment strips the citizen of his status in the national and international political community,” which is arguably the case for the Venezuelan nationals imprisoned in El Salvador.

A large body of more recent Eighth Amendment case law has focused on prison conditions. And although those rulings also seem to be highly relevant to the harsh prison system in El Salvador, they might be trickier to apply, because U.S. courts lack the ability to investigate or issue orders abroad. Eric Berger, a law professor at the University of Nebraska at Lincoln, told me that although the Eighth Amendment ordinarily wouldn’t apply to a prison in another country, it “very well could” apply to the situation in El Salvador. “The Trump administration has said that it is paying El Salvador to detain these men; it is, for all intents and purposes, a joint U.S.-El Salvadoran incarceration program,” Berger wrote by email.

Publicly available information about the Centro de Confinamiento del Terrorismo, or CECOT—the prison where the deportees from the United States first arrived and where most of them are presumed to be incarcerated—is limited, because outside visitors are closely monitored, and inmates are rarely if ever released and able to tell their stories. Regardless, Salvadoran officials may transfer any prisoner anywhere at any time; they have already transferred the deportee Kilmar Abrego Garcia to a different prison. So long as that is possible, conditions in the Salvadoran prison system overall—about which more is known—are relevant to the fate of the deportees.

In recent decades, the Supreme Court has ruled that deliberate indifference to a prisoner’s serious illness constitutes cruel and unusual punishment. In El Salvador’s prison system, “former detainees often describe filthy and disease-ridden prisons,” Human Rights Watch reports. “Doctors who visited detention sites told us that tuberculosis, fungal infections, scabies, severe malnutrition and chronic digestive issues were common.” And in the 2011 case Brown v. Plata, the Supreme Court ruled that California had to release duly convicted inmates to alleviate overcrowding in state prisons. Overcrowding in El Salvador is reportedly worse than in California, with past detainees telling human-rights workers of cells so packed that inmates had to sleep standing up. Transferring people from the United States into El Salvador’s prison system shows, at best, deliberate indifference to harmful conditions, as documented by multiple organizations.

Some of the Supreme Court watchers I spoke with noted that the current right-leaning justices have tended to interpret the Eighth Amendment more narrowly since Plata, showing more reluctance to grant relief to inmates. In recent years, Eighth Amendment doctrine has been “so stripped down” that “even egregious, morally indefensible treatment can easily pass constitutional muster,” Sharon Dolovich, a law professor at UCLA, told me by email, “and recent cases indicate those protections may well shrink even further, so that only prisoners subjected to intentionally brutal treatment (i.e. treatment that ‘superadds terror, pain and disgrace’) would even have a chance of prevailing.” (That language comes from a majority opinion that Justice Neil Gorsuch wrote in a death-penalty case.) Still, in Dolovich’s estimation, El Salvador’s prison system “would most certainly” meet even that high threshold of superadding terror, pain, and disgrace.

What if, in the near future, Trump decides to act on his repeatedly expressed desire to send Americans who commit especially heinous crimes to prisons in El Salvador? He has speculated that he could fill five prisons with such Americans. “If they’re criminals,” Trump said during a meeting with Bukele in the Oval Office, “if they hit people with baseball bats over the head that happen to be 90 years old, and if they rape 87-year-old women in Coney Island, Brooklyn—yeah, yeah, that includes them.”

Read: A loophole that would swallow the Constitution

Several of the scholars and litigators I consulted said that they believe an Eighth Amendment challenge to that policy would arise. “If Trump really meant what he said about sending American citizens convicted of crimes to prisons in El Salvador as part of their punishment,” the Harvard law professor Carol Steiker wrote to me, “that clearly would be subject to Eighth Amendment limitations.” That is so not because the people involved would be citizens, but because when the state convicts a person and then orders them imprisoned, the Supreme Court already recognizes that that constitutes “punishment.”

That conclusion is reassuring—even an Eighth Amendment that’s been interpreted more narrowly than I would prefer still confers some protection against cruel innovations in punishment. But it also highlights a core injustice of the prevailing jurisprudential approach: Administration officials would be subjecting convicted Americans and unconvicted aliens to the same treatment. The same president with the same motives might even pay for them to be locked up in the same prison cell. And yet, absurdly, the Eighth Amendment would protect the heinous criminals while offering no protection to their cellmates who were never convicted of anything.

Treating every deportation as a form of punishment would go too far. But so does presuming that no deportation can qualify as punishment, even when it includes transfer to a cruel and unusual prison system. Reasonable people can and do disagree about the best test for what constitutes a punishment. But any reasonable threshold is met when federal officials justify imprisoning people by alleging criminality, imprison them alongside a foreign country’s most dangerous criminals, and make public statements that convey a punitive intent.

I hope that an Eighth Amendment claim on behalf of deportees coaxes the Supreme Court to reconsider its precedents on what constitutes punishment. If the Trump administration responds by arguing that it is not acting with punitive intent, as the scholars I spoke with predict, the Court should probe the publicly available facts rather than deferring to whatever the administration might claim. Meanwhile, the rest of us should understand that, even if the fate of deportees to El Salvador is never found to violate the Eighth Amendment, that isn’t because they are being spared cruel and unusual treatment, but because the judiciary declines to classify much that is clearly cruel and unusual as a “punishment.” The El Salvador policy, however it is classified, is unusually and needlessly cruel, rendering it evil, an affront to human dignity, and beneath America.