US Must Fix Rules Sending ‘Gang Members’ to El Salvador Prison

The images and stories from the El Salvadorian prison to which the Trump administration is sending people are horrific.

The process that the government uses to decide who goes there—namely, a single government form—is just as concerning.

The administration claims to send members of Tren de Aragua, a designated foreign terrorist organization, to the maximum-security compound known as CECOT. It further claims it has a “stringent law enforcement assessment in place that abides by due process.”

We know the process doesn’t always work; the government admitted as much in the case of Kilmar Abrego Garcia of Maryland. But human error aside, we must ask whether the process is sound.

It’s not.

The Alien Enemy Validation Guide determines whether someone is subject to removal to CECOT under the Alien Enemies Act. The form is elegant. It will look familiar to anyone who’s practiced criminal law in our federal courts. It’s akin to the many rubrics we use to sort humans into categories, most prominently the US sentencing guidelines.

The guide requires confirming four facts before removing a person under the Alien Enemies Act. The first three are simple: The person is at least 14 years old, isn’t a US citizen or lawful permanent resident, and is a citizen of Venezuela.

The fourth—that the person is a validated member of Tren de Aragua—populates most of the form. There are 20 categories, each describing a fact and associated number of points. The simplest way to validate someone as a member of Tren de Aragua is to confirm facts associated with a total of eight or more points.

The form provides that if all points are from the categories labeled “symbolic” or “associational,” additional process is required before removal. The form also requires that at least one scoring category involves conduct within the last five years before validation.

The government contends that the only due process needed is that the executive branch complete this form, without review a neutral arbiter. It is therefore paramount, at a minimum, that an accurate form give some confidence that someone is a member of Tren de Aragua. It’s the only thing standing between him and CECOT.

A cursory review reveals the form fails to achieve even this modest goal of confirming gang membership.

As an example, five points are assessed if “court records” identify someone as a member of Tren de Aragua, but sentencing memos are listed as qualifying court records. The prosecution and defense each file memos before sentencing advocating for facts they hope the court will find. There is no process or minimum threshold, aside from a duty of candor to the court, limiting what can be included.

The government routinely includes allegations in sentencing memoranda that the court rejects. Yet, according to this form, in any case involving even an unsubstantiated allegation of Tren de Aragua membership in a sentencing memo, the person would be over halfway to CECOT on points.

Another example: Six points are assessed if the person participates in criminal activity with Tren de Aragua members. I’ve handled scores of narcotics trafficking cases. If Tren de Aragua engages in wholly internal trafficking, relying solely on their own members for every step of distribution—from large scale importing to corner sales—it’s an unusual organization, indeed.

There are almost certainly large numbers of people whose only connection to Tren de Aragua is a link in a chain of commerce. These people may be guilty of trafficking, but that doesn’t make them members of the gang.

It goes on. Four points are assessed if law enforcement identifies the person as a member of Tren de Aragua. This obviates the distinction between police intelligence and evidence.

Law enforcement intel about gang membership is often introduced at federal detention hearings. Lawyers and judges understand that police departments maintain broad lists of people who might be in gangs, even where evidence of gang membership is de minimis and possibly wrong.

I’ve handled many cases in which the prosecutor points to a law enforcement claim that my client is a gang member, only to have the judge ultimately reject the allegation.

These are just a selection of flawed categories, and by no means the only ones. Too many texts with Tren de Aragua members can net six points? Bad news for anyone whose crime is having a family member, friend, or dealer who is in Tren de Aragua.

Look again at the disturbing images and listen to the horror stories coming from CECOT. Ask yourself not whether we should be sending people there, but rather, if we’re doing this, how careful we should be.

Due process can’t tolerate the substitution of accusation for adjudication. A nation of laws must be more careful than this.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Gregory M. Gilchrist is a law professor at the University of Toledo College of Law and a former assistant federal public defender.

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