President Donald Trump seems determined to undo as much of the legacy of Joe Biden as he can as fast as he can. Even before he took office for his second term, Trump took aim at one part of that legacy, the former president’s mass clemency of the sentences of people on the federal death row.
In a Christmas post on Truth Social, Trump said, “to the 37 most violent criminals, who killed, raped, and plundered like virtually no one before them, but were just given, incredibly, a pardon by Sleepy Joe Biden. I refuse to wish a Merry Christmas to those lucky ‘souls’ but, instead, will say, GO TO HELL!”
On the first day of his second term, the president turned those sentiments into policy in an Executive Order entitled “RESTORING THE DEATH PENALTY AND PROTECTING PUBLIC SAFETY.” In that order, President Trump directed Attorney General Pam Bondi to “evaluate the places of imprisonment and conditions of confinement for each of the 37 murderers whose Federal death sentences were commuted by President Biden, and…take all lawful and appropriate action to ensure that these offenders are imprisoned in conditions consistent with the monstrosity of their crimes and the threats they pose.”
In the federal system, that likely would mean confinement in “ADX” the supermax facility in Florence, Colorado, also known as “Alcatraz of the Rockies.” On April 16, 21 of the 37 people whose sentences were commuted by President Biden brought suit to stop the government from effectuating a transfer to ADX.
They called it a “remote and brutally isolating” facility. They contend that the conditions at ADX are “objectively painful and harmful and constitute…unnecessary and wanton infliction of pain.” Instead, the Executive Order has “no penological justification.” It reflects only “animus” toward those whose sentences Joe Biden commuted.
Let me be clear: No one should have to endure life in ADX. But confinement there is especially inappropriate when it is used as payback by one administration to its predecessor.
The journalist Charles Montaldo describes ADX this way:
Opened in 1994, the ADX Supermax facility was designed to incarcerate and isolate criminals deemed as being too risky for the average prison system…. The all-male prison population at ADX Supermax includes inmates who experienced chronic disciplinary problems, while at other prisons, those who have killed other prisoners and prison guards, gang leaders, high-profile criminals, and organized crime mobsters. It also houses criminals who could pose a threat to national security, including Al-Qaeda and U.S. terrorists and spies.
ADX prisoners “spend at least 20, and as many as 24 hours per day locked alone in their cells…which… measure seven by 12 feet and have solid walls that prevent prisoners from viewing the interiors of adjacent cells or having direct contact with prisoners in adjacent cells.”
Nonetheless, supermax prisons like ADX do not decrease prison violence. Indeed, as Professor Keramet Reiter explains, they are better understood “as tools of violence production.” The violence they produce is registered in their psychologically and physically destructive environment.
Stuart Grassian, a psychiatrist and expert on solitary confinement, explains the effect of prolonged isolation that inmates at supermax facilities like ADX: “It has indeed long been known that severe restriction of environmental and social stimulation has a profoundly deleterious effect on mental functioning.“
Solitary confinement “results in severe exacerbation of a previously existing mental condition or in the appearance of a mental illness where none had been observed before.” Prisoners experience “agitation, self-destructive behavior, and overt psychotic disorganization.” They also have memory lapses, “primitive aggressive fantasies,” paranoia, and hallucinations.
So far, those facts have not convinced courts to declare that supermax prisons constitute cruel and unusual punishment in violation of the Constitution’s Eighth Amendment. Moreover, in international law, solitary confinement of the kind found at ADX, the Boston Review’s Lance Tapley observes, “is not likely to be considered torture anytime soon.”
Tapley notes that when the United States Senate ratified the Convention Against Torture, “it qualified its approval so much that under the U.S. interpretation ‘the placement of even mentally ill prisoners in prolonged solitary confinement would not constitute torture even if the mental pain caused thereby drove the prisoner to commit suicide.’”
Nonetheless, in 2005, the United States Supreme Court did recognize that “inmates have a constitutionally protected liberty interest in avoiding assignment (to a supermax prison).” That interest arises from the fact that such an assignment “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”
As Justice Anthony Kennedy described those hardships, “almost all human contact is prohibited, even to the point that conversation is not permitted from cell to cell; his cell’s light may be dimmed but is on for 24 hours; and he may exercise only one hour per day in a small indoor room.”
“Save perhaps for the especially severe limitations on all human contact,” Kennedy wrote, “these conditions likely would apply to most solitary confinement facilities, but here there are two added components. First is the duration. Unlike the 30-day placement in segregated confinement…, placement [in a supermax] is indefinite and…that placement disqualifies an otherwise eligible inmate for parole consideration.”
Together, Kennedy concluded, “these conditions impose an atypical and significant hardship within the correctional context.”
In their April 16 suit, lawyers representing the 21 inmates reiterated that argument as the basis for claiming a violation of their clients’ due process rights and the statutory requirements governing transfer decisions by the Federal Bureau of Prisons.
As they explained, “in the days and weeks after President Biden’s commutation, BOP officials began working with plaintiffs and their lawyers to reclassify and transfer the 37, according to controlling statutory and policy requirements, known as the redesignation process. BOP officials recommended in the first instance that most plaintiffs be redesignated to high-security USP (United States Prisons) or BOP healthcare facilities.”
After President Trump and Attorney General Bondi took office they “instituted a new procedure replacing the usual BOP redesignation process in defiance of the controlling statutes, regulations, and policies governing the BOP redesignation process, (they) ordered BOP staff to engage in a new sham process that categorically predetermined that all plaintiffs…will be incarcerated indefinitely in the most oppressive conditions in the entire federal prison system.”
The suit contends, “Condemning plaintiffs to indefinite incarceration in harsh conditions in response to the receipt of clemency from the previous president exceeds the statutory authority granted to the Attorney General and her deputy and is arbitrary, capricious, and an abuse of discretion….”
The Trump administration’s treatment of the people who received Biden’s clemency has a familiar ring. It is another example of the ruthless cruelty that seems to provide the administration’s animating energy. Trump, Robert Kuttner writes, revels in cruelty.
The inmates awaiting transfer from federal death row have been accused of heinous crimes. But respect for the law is put to its severest test when the rights of such people are at stake.
Ronald Reagan got it right when he said, “Protecting the rights of even the least individual among us is basically the only excuse the government has for even existing.” The federal courts should remember that as they consider the plight of those now facing another death penalty, the slow death awaiting them at ADX.
