Trump Is Saying the Quiet Part Out Loud: Federal Prisons Are Purposely Inhumane
Attorney General Pam Bondi issued last week several memos to all Department of Justice employees including one with the subject: Reviving the Federal Death Penalty and Lifting the Moratorium on Federal Executions." It detailed exactly how her agency will put into practice an executive order to restart federal executions that President Donald Trump signed on his first day in office.
The memo denounced the pause on federal executions under former President Joe Biden and claimed DOJ officials had neglected their jobs by upholding a moratorium on federal executions in place since 2021, which halted a killing spree launched by Trump in his first term. The Department's political leadership disregarded these important responsibilities and supplanted the will of the people with their own personal beliefs," the memo read.
Related Can Conservatives Expand the Death Penalty Using the Trigger Law" Playbook? While there is no evidence that the death penalty achieves its purported goal to deter crime, the Trump administration wants the federal government to direct substantial resources and dollars to carrying out more executions, more quickly. Through its executive actions and policy memos, the administration is also stating something that criminal justice and human rights advocates have long said: that conditions in many federal detention facilities are inhumane, and Trump wants to keep them that way.
In the January 20 executive order, Trump directed his attorney general to evaluate the conditions of confinement for the 37 people commuted from federal death row at the end of Biden's term 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."
The message is a direction to the federal government to use conditions of confinement as additional punishment - which is unconstitutional under the Eighth Amendment prohibition of cruel and unusual punishment, according to Miriam Gohara, a clinical professor of law at Yale University and a former federal public defender.
On top of that, it suggests that inhumane conditions in federal detention are the administration's goal.
The one thing that was clear from the order was that it sounded like the administration was going to try to influence placement of people, and try to do so under conditions that they called monstrous' in their order," Gohara told The Intercept. Gohara spent over a decade representing clients sentenced to death in post-conviction litigation.
Certainly, if I were leading the [Bureau of Prisons] or if I were working in the BOP, I wouldn't want to suggest that there are any monstrous conditions in my facilities," she said.
That suggests that they're actually encouraging the Bureau of Prisons to maintain monstrous conditions, or that they think they're already monstrous conditions in the BOP somewhere, and that somebody could be put there. Which again, seems like a very odd thing for the executive to be saying about one of his agencies."
The administration's use of language describing federal detention as monstrous" is on par with how Trump has spoken on criminal justice from the start, said death row attorney Dale Baich. He previously led the unit of the Arizona Federal Defender's Office that represents people sentenced to death in post-conviction proceedings.
I was really taken aback by the number of adjectives in the order," Baich said. But, you know, that's how he campaigned, that's how Project 2025 was drafted. We really shouldn't be surprised."
Related As Wildfires Threaten More Prisons, the Incarcerated Ask Who Will Save Their Lives Incarcerated people and advocates for reform have long argued that conditions of incarceration across the board - from federal prisons to local jails - are inhumane and that the government has not done enough to address them. Even prior to the latest order, there are plenty of examples of detention facilities that have not taken corrective measures even under court order.
Welcoming and embracing inhumane conditions in prisons as federal policy will make challenging those conditions even more difficult, Baich said. It's hard enough to challenge conditions of confinement when departments of corrections or the Bureau of Prisons is saying that it's not unconstitutional," he said.
So I just think it's going to be a real heavy lift going forward to challenge those conditions," Baich said.
But challenges, he said, must continue. What is important is to continue to pursue unconstitutional conditions of confinement and hold the government accountable."
Bondi's memo last week also directs Bureau of Prisons employees to work with states that allow executions to ensure they have sufficient supplies and resources to impose the death penalty" - including lethal injection drugs - and helping to transfer federal detainees to the appropriate authorities to carry out those sentences."
Out for Blood The order also directs the U.S. attorney generalto look for opportunities to bring state capital charges against those with commuted federal death sentences and make relevant recommendations to state and local authorities, effectively finding another way to execute them. At its worst, that could look like the Department of Justice finding a way to federalize crimes in states without the death penalty - in other words, making a new constituency of suspects eligible for federal execution, Baich said.
States that don't have the death penalty or only rarely use it are already bracing for how, if at all, Trump's order might affect them. On Wednesday, Trump said judicial efforts to push back on his orders amounted to a weaponization" of the courts.
Since Trump won the presidential election, at least one Democratic governor has already taken steps to downplay the state's history of botched executions. In late November, Arizona's Democratic Gov. Katie Hobbs fired an independent commissioner before they were set to publish a report on their investigation into the state's history of botched lethal injections. A draft of the report, which was never published, concluded that death by firing squad, barred in Arizona, was the only form of execution more quick and less painful than lethal injection. Arizona's next execution, the first in two years, is scheduled for March 19.
Capital trials are expensive and resource-intensive, and it's an open question whether the Trump administration would provide grants or additional support to rural counties that historically don't have the capacity to carry out capital trials or executions. In a worst-case scenario, the administration could find a way to offer money to rural counties that often can't afford to prosecute death penalty cases.
Trump's Justice Department has already authorized the movement of one person to ensure their execution. On Wednesday, Bondi approved Oklahoma's request to transfer George Hanson to the state from Louisiana for execution. Hanson was previously scheduled to be executed in Oklahoma in 2022, but Biden's DOJ denied Oklahoma's request to transfer him from Louisiana, where he is serving a life sentence for an unrelated conviction.
Baich called the move an example of this newly found cooperation between DOJ and the states."
Mr. Hanson was never going to get out of prison," Baich said. Deliberate decisions by government officials have deprived Mr. Hanson of the guarantees of due process. This trampling of constitutional protections and the rush to execute are consistent with what we saw at the end of the first Trump administration where thirteen people were executed."
The death penalty does nothing to promote public safety, and, in fact, detracts from public safety resources."
The Trump administration's focus on accelerating federal executions takes away resources from the goals it claims to prioritize, Gohara said during a briefing on the order last month. Those stated goals include things like helping victims and curbing crime - at a time of historically low national rates.
We now understand that the death penalty does nothing to promote public safety, and, in fact, detracts from public safety resources that actually could be used to help keep people free from crime and violence," Gohara said. If you're spending money on expensive capital trials, you're not spending money on doing things like using rape kits to clear old cases or to try to solve cold crimes."
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