In late November, as health officials urged the public to avoid travel amid a new wave of coronavirus cases, dozens of people traveled to a federal prison complex in Terre Haute, Indiana, for the execution of Orlando Hall. At the time, around 75 incarcerated people and staff at the complex had active cases of COVID-19.
A few days later, Hall’s spiritual adviser Yusuf Ahmed Nur, who performed last rites for Hall while next to two unmasked executioners, tested positive. Since then, cases have spiked at Federal Correctional Complex, Terre Haute, where all federal executions take place. As of Monday, over 200 incarcerated people and 21 staff are sick with the virus. Now, the Department of Justice has admitted that eight members of the approximately 40-person execution team also tested positive after the execution.
The latest disclosure came in response to a lawsuit brought by two men incarcerated at FCC Terre Haute. They are suing the government to halt executions until the pandemic is under control in order to protect their health.
The government initially said that “some” members of the execution team had tested positive — but the admission was buried in a footnote of a court filing and did not specify how many people had gotten sick. In a subsequent court filing, Bureau of Prisons lawyer Richard Winter said that six members tested positive about a week after returning home and an additional two tested positive more than a week after going home. That at least 20% of the execution team contracted COVID-19 after the most recent execution is evidence of what public health experts and lawyers who represent people on death row have been warning for months: Carrying out executions during a pandemic puts people who live and work in and around the prison at increased risk of contracting a potentially fatal disease.
“There is simply no doubt that these executions spread COVID-19.”
Lawyers for the two men wrote that the government disclosure offered “compelling evidence of the significant risk that conducting the scheduled executions will spread COVID-19 within FCC Terre Haute (and beyond).”
In the meantime, the Trump administration is pushing forward with the killings.
On Thursday, the government plans to execute Brandon Bernard, a man who was sentenced to death for acting as an accomplice to a crime that occurred when he was 18 years old. Five of the nine surviving jurors who sentenced Bernard to death now believe he should live, citing information that came out after his trial.
Prisons are some of the most dangerous places to be during the pandemic, as those living within them cannot socially distance themselves from others and often lack access to protective gear and cleaning supplies. Prisons also tend to be crowded and poorly ventilated. Since the pandemic began, many of the largest outbreaks have been linked to correctional facilities.
There is no compelling reason these executions need to be carried out now.
Until recently, there had not been a federal execution in 17 years. When the pandemic hit the U.S., most states paused executions in an effort to contain the spread of the virus. But in July, the Trump administration resumed federal executions, against the advice of public health experts. Since then, the government has rushed to put to death eight people, with five more scheduled to die before President-elect Joe Biden, who opposes the death penalty, takes office on Jan. 20. This is the first time since 1889 that an outgoing administration has carried out a federal execution after losing an election.
Since resuming the killings in July, coronavirus cases have spiked at FCC Terre Haute, as well as in Vigo County, where the prison is located. (The government has argued in court filings that there is no evidence the spikes were definitively caused by the executions.)
The consequences of the government’s rush to execute go far beyond health concerns. Criminal justice leaders have warned that death-row prisoners are being denied access to effective legal representation during the pandemic, and travel restrictions are jeopardizing clemency efforts.
Still, there are serious public health risks involved with carrying out executions in the midst of a pandemic.
“At the risk of sounding like a broken record, there is simply no doubt that these executions spread COVID-19,” said Cassandra Stubbs, director of the American Civil Liberties Union’s Capital Punishment Project, in a statement. “The spread of disease that will occur if the wave of five scheduled executions — starting Thursday and scheduled until just before inauguration day — are allowed to take place will have been totally predictable and preventable. The courts must step in to stop them, protect the people incarcerated at Terre Haute who have no control over the risk the government is subjecting them, and slow the senseless suffering of the American people.”
Part of the reason federal executions pose such a high risk of COVID-19 transmission is the number of people involved in the operation.
Each one requires the involvement of an “execution team” sourced from Bureau of Prisons staff, usually from out of state. The roughly 40 people on a team are not required to quarantine once arriving in Indiana or undergo testing for the coronavirus prior to the execution, according to a government filing. Those individuals also work closely with about 200 FCC Terre Haute prison staff, who provide security and support. Testing after working an execution is voluntary; in an affidavit, the prison complex warden said that in the past, only five to seven members of the execution team have elected to be tested prior to returning to their home communities.
Others, including lawyers, media, family and demonstrators also gather for each execution, making such occasions prime candidates for superspreader events. The Bureau of Prisons estimates that approximately 50 to 125 people will travel to the prison for each execution.
The risks of carrying out executions during the pandemic were evident from the beginning.
In July, when federal executions first resumed, the ACLU sued the government on behalf of Buddhist priest Seigen Hartkemeyer, the spiritual adviser to Wesley Purkey, who was scheduled to be executed later that month.
Moving forward with Purkey’s execution in the middle of the pandemic presented “an untenable conflict” for Hartkemeyer by forcing the 68-year-old man with a history of recurring bronchitis and pleurisy to “decide whether to risk his own life in order to exercise his religious obligation to be present for Mr. Purkey’s execution,” the ACLU wrote in its complaint.
Family members of the victims of another man who was scheduled for execution in July joined Hartkemeyer in calling for the executions to be delayed until it would be safe to attend.
About a week after the ACLU filed suit, a BOP staffer who had attended meetings in preparation for three executions, including Purkey’s, tested positive for COVID-19. The staff member did not always wear a mask, a BOP lawyer acknowledged in a court filing. Asked how many staff and incarcerated individuals he was in contact with in the lead-up to his positive test result, the staff member simply reported, “? Alot.”
The Trump administration went forward with the scheduled executions: In the week following the BOP staffer testing positive, Purkey and two other men were put to death.
The rush to execute federal prisoners during the pandemic has also put attorneys in danger.
The two lead attorneys for Lisa Montgomery, the only woman on federal death row, both contracted COVID-19 after visiting with her in prison after her execution date was set. Montgomery suffers from mental illness and was a victim of extreme childhood abuse, including incest and sex trafficking by her parents, according to her attorneys.
Both her lawyers reported severe COVID-19 symptoms and were unable to prepare Montgomery’s clemency petition before the deadline. A judge delayed Montgomery’s execution until Jan. 12 — eight days before Biden’s inauguration — to give her attorneys some time to recover.
Robert Owen, a lawyer who has worked with Bernard for the past 20 years, is not planning to attend his execution on Thursday if it proceeds. Owen is in a high-risk group for COVID-19 and doesn’t feel he can take the chance of contracting the disease. “I’m deeply disappointed at that. I’m angry about it,” he said in an interview.
“I know that it can be really important to the client to have counsel present close to, or even at the time of the execution, and I would like to be able to offer that comfort to Brandon,” Owen said. “I’m frustrated that I can’t do it safely.”
This story has been updated to reflect the government’s admission that eight members of a federal execution team tested positive for COVID-19 after returning home from a November execution.