By Samuel López | USA Herald

EL SALVADOR - President Nayib Bukele, whose sweeping campaign against MS-13 and Barrio 18 transformed El Salvador from one of the world's most violent countries into one reporting extraordinarily low homicide levels, is now considering something almost as consequential as the mass arrests themselves.

He wants to begin letting potentially thousands of prisoners out.

Bukele announced Tuesday that his government is evaluating conditional early release for people accused or convicted of lower-level collaboration with gangs. He estimated the program could eventually benefit approximately 50% of prisoners falling within the collaborator category.

But there is an important distinction getting lost in some of the headlines.

Bukele is not proposing that half of El Salvador's most dangerous gang members simply walk out of prison.

Instead, his government says it is examining degrees of culpability.

Bukele illustrated the distinction starkly. Someone who helped gang members bury a murder victim, he argued, belongs in an entirely different category from a young person living in a gang-controlled neighborhood who served as a lookout and warned that police were approaching.

That distinction could become the foundation of one of the largest post-crackdown prisoner-review programs in Latin America.

From Mass Arrests to Individual Review

El Salvador has operated under a state of exception since March 2022.

More than 93,000 people have since been arrested as alleged gang members or collaborators. The emergency system suspended or restricted important constitutional protections and enabled authorities to hold defendants under procedures substantially different from ordinary criminal prosecutions. Human-rights organizations say thousands were arbitrarily detained and have documented hundreds of deaths in custody.

Bukele nevertheless maintains that the crackdown was necessary to dismantle criminal organizations that effectively controlled neighborhoods and terrorized residents.

Now his government appears to be confronting a question that inevitably follows a mass-incarceration strategy:

What happens to the people at the margins of those criminal organizations once the organizations themselves have been dismantled?

Bukele acknowledged that collaboration existed on an enormous scale because ordinary Salvadorans lived under gang domination.

“If we were to arrest everyone who collaborated with gangs,” Bukele said, authorities would effectively have to arrest approximately 20% of the country's population.

That is an unusually important acknowledgment because it introduces something largely absent from the original crackdown — degrees of culpability.

Release Would Not Mean Exoneration

Bukele has emphasized that the contemplated releases would be conditional.

His position is that qualifying prisoners may still be legally culpable but that their level of participation, circumstances and years already spent incarcerated could justify release under supervision.

There is not yet a published timetable, final eligibility formula or definitive number of prisoners who will be released.

The government must ultimately determine who makes the decisions, what evidentiary standard applies, whether prosecutors or judges must approve releases, what happens to unresolved criminal charges, and whether someone who maintains that he was innocent from the beginning must nevertheless accept a legal designation of guilt to obtain freedom.

That last question could become one of the most important legal issues surrounding the program.

The Electronic-Monitoring System Already Exists

One largely overlooked piece of the story is that El Salvador has been preparing technological infrastructure capable of supervising prisoners outside prison.

In May 2025, El Salvador's Legislative Assembly authorized approximately $3.95 million for an electronic monitoring system, including plans to acquire at least 3,108 electronic devices.

Those devices were designed to connect electronically monitored prisoners with a centralized monitoring center operated within the corrections system.

And Salvadoran law already expressly recognizes electronic surveillance devices — including bracelets, ankle monitors, chips and similar technology — for monitoring and locating individuals subject to alternatives to detention or conditions attached to conditional release.

That means Bukele would not necessarily be constructing a mass-monitoring system from scratch.

The legal framework and at least part of the technological infrastructure already exist.

A Second Legal Question Few Are Asking

There is another issue worth watching.

El Salvador's ordinary conditional-release law traditionally contemplates judicial involvement. Its Penal Code provides mechanisms under which the appropriate surveillance judge can grant early conditional release when statutory requirements are satisfied, including an individualized favorable assessment of social reintegration.

Bukele's proposed program, however, appears potentially much broader.

If tens of thousands of cases are reviewed through a special administrative or inter-governmental mechanism rather than conventional individual court proceedings, El Salvador will eventually have to clarify what legal authority converts that review into an enforceable release order.

That procedural question could determine whether this becomes traditional parole on an enormous scale, a specially created post-emergency release program, or something entirely new.

For now, prisoners who have spent years behind bars for relatively low-level involvement — and for families who have insisted some detainees never belonged to gangs at all — that review could be life-changing.

But the real test will come when the government publishes the rules.

Who qualifies, who decides, what evidence is reviewed, whether prisoners receive lawyers, what monitoring follows them home and whether a person can challenge the government's determination of guilt will determine whether Bukele's initiative becomes merely an early-release program — or the beginning of a broader attempt to restore individualized justice after four years of mass incarceration.