Before leaving office, Biden deprived Trump of whatever grisly enjoyment he might have gotten from presiding over the executions of 37 of the 40 inmates on the Bureau of Prisons death row (see story here).
There’s likely a public consensus that he’s welcome to the remaining three: Dzhokhar Tsarnaev, the Boston Marathon bomber; Robert Bowers, the synagogue shooter; and Dylan Roof, the black church shooter. Go ahead and execute them, I’m fine with that.
As for the 37 dead-men-still-walking, Trump has already decided to inflict additional punishment on them: He refused to wish them a Merry Christmas (see story here). He also told them to ‘GO TO HELL” in all caps. Ouch, that must have hurt!
I don’t disagree with this, as far as it goes (I didn’t wish them a Merry Christmas either); but just for fun, let’s do a thought experiment premised on the idea that Trump goes farther when he becomes president (he’s still only president-elect, which ties his hands for now), and orders the Bureau of Prisons to “make their lives a living hell.”
Now I know what you’re thinking: Don’t give him ideas. Yes, well, I certainly agree with that in principle, even though I don’t believe a good Christian man like Trump would do such a thing, which is coded phrasing for saying I don’t think he reads this blog.
Let’s assume he orders the Bureau of Prisons to make these 37 prisoners’ lives a “living hell,” as a result of which they’re subjected to harsh treatment, and prisoners rights attorneys sue. What would happen in the courts?
Well, first of all, there are formidable proof problems. The lawyers have to show (1) the treatment of these prisoners has changed in a non-trivial way, (2) the change can’t be attributed to normal prison discipline, (3) they’re treated differently from other prisoners, and (4) the harsh treatment was ordered from above.
Do the lawyers have a case for judicial relief? Yeah, I think so, because even prison inmates have constitutional rights, and singling them out for harsh treatment because Trump is piqued about their commutations arguably violates due process, equal protection, double jeopardy, and the cruel and unusual punishment clause.
Due process, because they’re arbitrarily being given extra punishment on Trump’s whim; equal protection, because of disparate treatment without legal basis; double jeopardy, because they’re being punished again for the same crimes; and cruel and unusual punishment may come into play depending on what the harsher treatment consists of.
Is there a way for Trump to retaliate against these prisoners for having their sentences reduced? I’d rather he spends his time cogitating about that, than dreaming up invasions of Panama and Greenland.