In a legal victory based on the constitutional right to due process, U.S. Federal Judge Timothy Kelly in Washington, D.C., blocked the Department of Justice from transferring 20 former death row prisoners to the only federal “supermax” prison in the country, the ADX in Florence, Colorado.
“The Constitution requires that whenever the government seeks to deprive a person of a liberty or property interest that the Due Process Clause protects — whether that person is a notorious prisoner or a law-abiding citizen,” Kelly, who was appointed by President Donald Trump, wrote. “The process it provides cannot be a sham.”
Former President Joseph Biden commuted the death sentences of 37 of the 40 prisoners then on federal death row at the end of his term. When Trump took office he issued an Executive Order directing these same prisoners be housed “in conditions consistent with the monstrosity of their crimes and the threats they pose.”
Kelly wrote that the Justice Department “was transparent about seeking to punish Plaintiffs by sending them to ADX Florence,” publicly promising “that Plaintiffs will spend the rest of their lives” there.
But Federal Bureau of Prisons officials had already determined that based on their conduct in prison none of the inmates were appropriate for imprisonment in the ADX. Nonetheless, the Justice Department transferred 10 of them to Florence.
A lawsuit was filed by 20 of the prisoners currently held at the federal penitentiary in Terre Haute, Indiana, stating that their transfers would violate the Eighth Amendment’s prohibition against “cruel and unusual punishments.” It was filed by the National Prison Project of the American Civil Liberties Union.
Some of the 10 already sent to Florence argue that they, too, should have transfer rights, either because they do not have serious disciplinary records or because of physical and mental health needs that cannot be met at the ADX.
Prisoners sent to supermax ‘to punish them’
Kelly ruled that his order will stay in place while the lawsuit winds through the courts. “Officials with authority over BOP [Bureau of Prisons] made it clear that they had to be sent to ADX Florence to punish them, no matter what result the ordinary BOP process might have yielded,” he wrote.
“It was like the joy of clemency all over again,” the lead plaintiff, inmate Rejon Taylor, told Newsweek the day after Kelly’s ruling. “It was just like, yes, I can breathe again. I can relax.” Taylor had previously told Newsweek he dreaded going to the ADX. “There’s no hope for me if I end up there.”
“We would prefer to be in solitary confinement on federal death row than the ADX,” he said.
Judge Kelly pointed to things he had heard about prison conditions at Florence, including from a former prisoner who said he went 13 days “without hearing another human talk.”
Prisoners’ lawyers told the New York Times that ADX inmates “spend 22 to 24 hours a day locked alone in small cells built expressly for severe sensory deprivation and to minimize any human contact, including contact with prison staff.”
They’re confined to soundproofed 7-by-12-foot darkened concrete cells with poured concrete beds and one 4-inch slit window. In ADX’s most restrictive wing, meals are delivered without physical contact. Prisoners are given only one hour of phone calls each month. Suicide attempts are common.
The Justice Department is also moving to put on trial again in state courts as many of the 37 prisoners as possible, prioritizing those whose crimes were committed in states that have the death penalty.