A federal judge has denied a legal attempt, for now, to prevent the U.S. government from transferring death row inmates whose sentences were commuted by then-President Joe Biden to the “Supermax” in Colorado, the highest-security federal prison in the country.
U.S. District Judge Timothy Kelly in Washington, D.C., ruled Tuesday against issuing a preliminary injunction requested in a lawsuit brought by 21 of the 37 former death row inmates, all of whom saw their sentences changed to life without parole in December.
“The Court cannot grant that relief — at least not now,” Kelly wrote in his opinion, saying that the plaintiffs must first exhaust their administrative appeals within the federal Bureau of Prison’s transfer process.
The decision comes as the BOP has said it would not transfer any of the plaintiffs to the “Supermax,” also known as the Administrative Maximum Facility, or ADX, until at least the end of May.
“The Bureau of Prisons offers an administrative process for challenging final designations to ADX, and Plaintiffs have not completed — or, to the Court’s knowledge, even started — that process,” Kelly wrote. “Because the Court lacks discretion to append exceptions to Congress’s exhaustion requirement, it will deny Plaintiffs’ motion for a preliminary injunction.”
Nearly all of the former federal death row prisoners remain at the penitentiary at Terre Haute, Indiana, home to the U.S. government’s death chamber. The Biden administration halted federal executions, a departure from President Donald Trump’s first term, when 13 federal inmates were put to death in a spree of executions not seen since President Grover Cleveland in the late 1800s.
The Justice Department did not immediately respond to a request for comment Wednesday about the judge’s ruling.
The American Civil Liberties Union, which is among the legal teams representing the plaintiffs, said it still believes that the inmates “can be safely housed elsewhere in the federal system,” and that the BOP agreed with that before the Trump administration’s Justice Department stepped in.
“While the court ruled that it could not order the Bureau of Prisons to leave the plaintiffs in place while they appealed their designations to ADX, the fight is far from over,” Brian Stull, deputy director of the ACLU’s Capital Punishment Project, said in a statement.
Trump was critical of Biden’s commutation effort, and on his first day back in office in January, he signed an executive order calling for the U.S. attorney general to ensure the commuted death row inmates “are imprisoned in conditions consistent with the monstrosity of their crimes and the threats they pose.” He also restored the federal death penalty.
The “Supermax,” which sits in a mile-high desert south of Colorado Springs, is also known as “the Alcatraz of the Rockies” for its isolated conditions and housing some of the most high-profile prisoners deemed safety risks. They currently include drug kingpin Joaquín “El Chapo” Guzmán and domestic terrorists Eric Rudolph, the 1996 Atlanta Olympics bomber, and Dzhokhar Tsarnaev, the Boston Marathon bomber, whose federal death sentence was not commuted by Biden.
The former death row inmates challenging the government’s plan to transfer them to the “Supermax” said in their complaint, filed in April in the U.S. District Court for the District of Columbia, that doing so would be unconstitutional.
Their legal teams said the condemned inmates were given interviews in early April to assess whether they should be moved to the “Supermax.” But the complaint alleges the hearings were a “sham” because the BOP had already designated some of them under a “security threat” classification that assumes they are promoting violence or terrorist activity in gangs, and can’t be safely housed in the general population.
The plaintiffs attempted to show proof that they are not threats, including how despite being on death row they had successful programming and clean disciplinary records, were getting their health care needs met and would be harmed if they were “subjected to extreme isolation at ADX,” according to the complaint.
“Unsurprisingly, following each Plaintiff’s hearing, and in some cases within minutes or hours, the Hearing Administrator recommended that ADX placement was ‘warranted’ for every one of them,” the complaint says.
“By categorically condemning Plaintiffs to indefinite incarceration in harsh conditions in response to their receipt of clemency from the previous President, it exceeds the statutory authority granted to the Attorney General and her deputy, and is arbitrary, capricious, and an abuse of discretion,” the suit adds.
The federal government said in its response to the complaint that the BOP has the statutory authority to designate where inmates can be held, the inmates went through a multilayered hearing process and have had the right to appeal, and “Supermax” inmates are not entirely isolated.
According to the Justice Department attorneys, the prison participates in a federal law known as the First Step Act, which “provides quarterly incentives to reward inmates for completing certain programming,” and may be offered “Starbucks coffee, pizza, and candy that is not available at Commissary.”
And unlike at the special confinement unit in Terre Haute, “inmates in the ADX may have the opportunity to ‘step down’ through a progression of housing with fewer restrictions and additional freedoms to the point where they may be transferred out of the ADX entirely to a high-security institution,” the government’s response said.
Kelly concluded in his ruling that the BOP would, in this case, continue to follow what it has done historically by not transferring inmates to the “Supermax” until remedies for appeal are worn out.
“Of course, if Defendants do transfer any Plaintiffs to ADX before those appeals conclude, or truncate those appeals in an unusual way, such a departure from the BOP’s ordinary practice would support Plaintiffs’ argument that the designation process at issue here is hardly business as usual for the Bureau,” Kelly said. “And it would raise serious questions about who is calling the shots: BOP or someone outside that agency.”
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