In the weeks before Donald Trump’s second inauguration, he sharply criticized President Biden’s decision to commute the sentences of 37 people on federal death row to life without parole. Upon taking office, Trump signed an executive order directing the attorney general to ensure that the 37 people are imprisoned in “conditions consistent with the monstrosity of their crimes.” However, the Supreme Court has previously ruled that imposing prison conditions motivated by retribution and not penological interests amounts to cruel and unusual punishment, and now a lawsuit is challenging the administration’s actions.
Attorney General Pam Bondi has instructed the Bureau of Prisons to carry out Trump’s executive order. The bureau subsequently developed a plan to move the 37 commuted men to a facility with conditions some have described as torture. Bondi also directed U.S. attorneys to assist state prosecutors to pursue separate capital cases under state laws against the 37 people, as Biden’s commutation only applies to their federal convictions. Because state and federal governments are separate sovereigns, each with the authority to enforce its own laws, this would not violate double jeopardy.
These actions represent an extraordinary attempt to undermine presidential commutations, an executive power clearly enshrined in the Constitution. They also mark an extreme deviation from how the U.S. government punishes people, allowing presidents to decide who should be punished and by what means, no matter how cruel and inhumane.
A federal lawsuit filed by 21 of the 37 targeted people is asking the courts to stop the Bureau of Prisons from fulfilling Trump’s directive, arguing that the proposed transfers to the Administrative Maximum Facility (ADX) in Florence, Colorado, violate a number of constitutional protections, undermine the president’s pardon power. It also argues that the process was unlawfully influenced by the executive order and Bondi’s subsequent directive. Although the plaintiffs request for a preliminary injunction asking that they not be transferred while this lawsuit is pending was denied, the judge in the case expressed an expectation that the Bureau of Prisons would adhere to its standard practice of not transferring people before their administrative appeals are concluded — but this is often an arduous process. Importantly, the court’s decision did not preclude the plaintiffs from seeking relief after exhausting their administrative remedies and noted that if anyone is moved to ADX before they are able to do so, it would “raise serious questions about who is calling the shots: BOP or someone outside the agency.”
Life in supermax prisons is dire — people live in near total isolation, spending up to 23 hours a day alone in a cell smaller than a parking space, with no meaningful human contact. A former ADX warden described the facility as “as stark as stark can be. It was not designed with humanity in mind.” When comparing ADX to the death penalty, a person who had been incarcerated there said, “They are both death penalties.” People are usually sent to a supermax if they have proven to be very violent or disruptive while incarcerated — it is not meant to be a punishment. In some instances, they are housed in ADX to limit communications with the outside, mostly to curb continued activities related to organized crime or terrorism.
In the United States, neither judges nor presidents have the authority to impose cruel or degrading conditions as punishment. A person’s punishment is defined by their sentence — whether death, life imprisonment, or a fixed term — not the conditions of their confinement. The proposed use of ADX to further punish and intentionally inflict pain on recipients of commutations is a clear violation of this principle.
The American criminal justice system has long been criticized as one that can be unduly retributive in nature, subjecting people to excessively long sentences, sometimes in overly punitive conditions. However, ordering conditions of confinement that are meant to inflict suffering — especially as retribution for people who have received a presidential clemency — is not only inherently cruel, but materially undermines the spirit of the clemency power and the judiciary’s exclusive and final authority to impose punishment.
The criminal justice system was designed to be free from political interference. The framers were cautious of the political branches punishing people and wanted to guarantee protection from the types of retributive punishment they had seen from the British monarchy. To this end, the Constitution guarantees defendants’ rights including trial by jury and prohibits what are called bills of attainder — laws that declare a specific person or group of people guilty of a crime and punish them outside the court process. And although the executive is given the power to be merciful through the use of pardons, the president cannot dole out punishment.
The administration’s plan disregards these bedrock constitutional principles. While political disputes over clemency have occurred before, no administration has attempted to weaponize conditions of confinement to nullify the lawful exercise of the clemency power. Allowing such actions would create a dangerous precedent, enabling future administrations to revisit closed cases based on political whims and personal feelings.
The case underscores a fundamental tension between political rhetoric and constitutional protections. While some may view the proposal as just deserts for heinous crimes, the legal system has long been premised on the idea that vengeance cannot override the law, nor can presidents prescribe punishment based on personal preference. As the lawsuit seeking to block the transfers asserts, the law demands punishments end where the sentence dictates, not politics.
