The United States-El Salvador Extradition Treaty: a dated obstacle in the transnational war against Mara Salvatrucha (MS-13).

• Author: Lineberger, Kelly Padgett

ABSTRACT

This Note discusses the dramatic proliferation of the Mara Salvatrucha (MS-13) over the last two decades, primarily focusing on the efforts of the United States and El Salvador to bring the notorious MS-13 to justice. The United States' deportation policy in the mid-1990s and its impact on the presence of MS-13 in El Salvador and the United States set the backdrop for an analysis of the current weapons available to combat the gang's transnational threat. As the international implications of MS-13's actions expanded in the late 1990s, the United States and El Salvador began to charter a number of bilateral and multilateral law enforcement initiatives to address the issue. This Note examines how the antiquated structure and underlying substantive law of the United States-El Salvador Extradition Treaty threaten the progress made by these initiatives, evaluates the United States' current attempt to address this threat through the UN Convention Against Transnational Organized Crime, and suggests a means to overcome an additional barrier to extradition created by El Salvador's constitutional ban on life imprisonment.

TABLE OF CONTENTS I. INTRODUCTION II. HISTORY AND EXPANSION OF THE MARA SALVATRUCHA (MS-13) A. The United States' Initial Response to the Growing MS-13 Threat B. The Exportation of Los Angeles Gang Culture to the Streets of El Salvador C. El Salvador's "Firm-Hand" Approach to Gang Control D. The Strain on El Salvador's Prison System E. El Salvador's Deployment of Military Forces to Control Gang Violence F. The Creation and Implications of the North-South "Revolving Door" G. International Cooperation in the War Against MS-13 III. BARRIERS TO EXTRADITION REQUESTS FOR MS-13 MEMBERS IN EL SALVADOR A. Structural Flaws in the 1911 Treaty B. Provisions in the El Salvador Constitution i. The Extradition of Salvadoran Nationals ii. The Death Penalty iii. Life Imprisonment IV. A SOLUTION: THE UN CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME AND STRATEGIC INTERPRETATION A. Evaluating the Potential for Success of Extradition Requests Made Pursuant to the UN Convention Against Transnational Organized Crime B. Overcoming the Constitutional Barriers to Extradition Via Strategic Interpretation V. CONCLUSION I. INTRODUCTION

"First is God, then your mother, then your gang. You live for God, you live for your mother, you die for your gang." (1) Brenda Paz, a former member of Mara Salvatrucha (MS-13), chillingly explained the gang's code to Federal Bureau of Investigation (FBI) agents a short time before she was brutally stabbed to death on the banks of the Shenandoah River in Virginia. (2) After discovering that Paz turned government informant, three MS-13 members--close friends of Paz--were "tapped" by the gang's leadership to carry out her murder. (3) Paz was seventeen years old and pregnant with her first child at the time of her death. (4)

In 2008, the FBI reported that MS-13--1abeled America's most dangerous gang (5)--was operating "in at least 42 states ... and ha[d] about 6,000 to 10,000 members nationwide." (6) Currently, there are over 60,000 MS-13 members located in ten different nations, across two continents. (7) Over the last decade, law enforcement in the United States and El Salvador, recognizing the transnational threat posed by MS-13, joined forces to bring the gang to justice. This effort to control MS-13's expansion focuses largely on bilateral and multilateral initiatives to promote information sharing and enhance law enforcement training in the United States and Central America. (8) While these transnational initiatives continue to provide key weapons in the war against MS-13, the outdated and restrictive extradition treaty currently in effect between the United States and El Salvador threatens their success.

This Note addresses the structural flaws in the 1911 United States-El Salvador Extradition Treaty (9) (1911 Treaty) currently impeding the extradition of MS-13 members from El Salvador to the United States and highlights the provisions in El Salvador's Constitution that may create additional barriers to extradition. This Note then evaluates the United States' current attempt to address these issues through the UN Convention Against Transnational Organized Crime (10) (Organized Crime Convention) and suggests how strategic interpretation could help the United States overcome the additional obstacles to extradition created by the El Salvador Constitution.

Focusing mainly on anti-gang efforts in the United States and El Salvador, Part II provides a foundation for understanding how and why MS-13 evolved into an international threat. Part III analyzes the 1911 Treaty in the context of U.S. extradition requests for MS-13 members in El Salvador. More specifically, Part III.A addresses the limitations inherent in the 1911 Treaty's list format as compared to the modern dual criminality approach. Part III.B discusses El Salvador's prohibitions on (1) extraditing Salvadoran nationals--repealed by constitutional amendment in 2000, (11) (2) the death penalty, and (3) life imprisonment (12) as potential impasses in the United States' attempt to circumvent the 1911 Treaty through the Organized Crime Convention.

Part IV evaluates the Organized Crime Convention as a mechanism for the United States to evade the restrictive language of the 1911 Treaty. In particular, Part IV.A discusses why the El Salvador Supreme Court of Justice should permit extraditions of MS-13 members requested under the Organized Crime Convention. Part IV.B suggests the use of strategic interpretation to overcome a key constitutional barrier to MS-13 extraditions--El Salvador's ban on life imprisonment.

2. HISTORY AND EXPANSION OF THE MARA SALVATRUCHA (MS-13)

   The Mara Salvatrucha, often characterized as "the world's most dangerous gang," began, somewhat paradoxically, on the playground of Seoul International Park in the Pico-Union neighborhood of Los Angeles, California. (13) Throughout the 1980s, with El Salvador embroiled in a lethal civil war, hundreds of thousands of Salvadorans fled to the United States seeking refuge. (14) Of the estimated 701,000 Salvadoran immigrants, a substantial number sought sanctuary in southern California. (15) Characterized by illegal status in the United States, a majority of the Salvadoran newcomers remained in poverty, constantly fearing arrest and deportation. (16)

   On the callous streets of Los Angeles, the alienated Salvadorans once again found themselves entrenched in a war. The established and "turf-conscious" Mexican and African American gangs preyed on the newcomers. (17) Uniting together to provide a much-needed service--protection from the homegrown Los Angeles gangs--young Salvadoran immigrants formed the notorious Mara Salvatrucha. (18) Armed with machetes, guns, and guerilla combat training--courtesy of the civil war in El Salvador--the Mara Salvatrucha rapidly became one of the most violent gangs in Los Angeles. (19)

   By the 1990s, the Pico-Union neighborhood was known as Los Angeles's "gang hotspot." (20) With rival gangs, the Mara Salvatrucha (MS-13) (21) and 18th Street--a largely Mexican-American gang--controlling Pico-Union's flourishing drug trafficking market, violence rose to a new level. (22) Battles between the two gangs over the control of territory claimed the lives of gang members and innocent bystanders alike. (23) The California prison system--where many of the MS-13 members served sentences for drug offenses and violent crimes--did not deter the violence; instead it operated more like a "finishing school" for the gang's members. (24)

   1. The United States' Initial Response to the Growing MS-13 Threat

      In 1992, as MS-13 thrived on the streets of Los Angeles, El Salvador ended its twelve-year-long civil war. (25) Thereafter, local law enforcement and the U.S. Immigration and Naturalization Service (INS) intensified their efforts to apprehend and deport gang members illegally residing in the United States. (26) The Violent Gang Task Force, formed by the INS, targeted MS-13, among other gangs, for the purpose of investigating and deporting foreign-born members living in the United States illegally as well as "[t]hose who have legal permanent residency but have committed [aggravated] felonies." (27) INS Chief Special Agent Michael Flynn acknowledged, "We are focusing on [MS-13] in particular because it is one of the most substantial and violent gangs in Southern California." (28)

      To promote this effort, throughout the 1990s, Congress continuously broadened the list of "aggravated felonies" that could result in the expedited removal of illegal aliens under the Immigration and Nationality Act. (29) Most notably, in 1990, Congress added "crime[s] of violence" (30) and "illicit trafficking in any controlled substance" (31) to the list. With the Violent Gang Task Force and reformed immigration laws in play, the INS deported ah estimated seventy gang members to El Salvador in 1993. (32) By January 1995, reports of gang member deportations soared to 780. (33) According to the Department of Homeland Security, Salvadoran deportations for criminal activity grew at ah alarming rate throughout the remainder of the decade. (34)

   2. The Exportation of Los Angeles Gang Culture to the Streets of El Salvador

      Despite the efforts of the United States to limit the growth of MS-13, El Salvador, still recovering from a gruesome civil war, acted as ah incubator for MS-13's already brutal tactics. (35) The 1992 Peace Accords, which ended the civil conflict in El Salvador, demobilized more than 30,000 Salvadoran Armed Forces Soldiers, 6,400 National Police, and 8,500 other combatants. (36) The demobilization left thousands of soldiers--ideal candidates for gang recruitment--unemployed. (37) As ah additional byproduct of the war, Salvadoran gangs, assisted by rampant government corruption, obtained access to a large number of firearms. (38) With few employment prospects and an abundant...