Covid-19 hits federal death row, prompting calls for delays in executions

The coronavirus pandemic is sweeping through death row at the federal penitentiary in Terre Haute, Indiana, with at least 14 of the roughly 50 men there having tested positive, lawyers for the prisoners and others familiar with their cases said.

The outbreak comes as the Trump administration is seeking to continue the wave of federal executions it has conducted, with three more scheduled before President Donald Trump leaves office Jan. 20. Two of the three people scheduled to be put to death next month — Corey Johnson and Dustin John Higgs — have tested positive for the virus.

Already their lawyers are saying their execution dates should be withdrawn. And in this case postponement past Jan. 20 could be the difference between life and death as President-elect Joe Biden has said he would work to end federal capital punishment.

The Justice Department and the Bureau of Prisons did not respond to questions about what protocols they would use to determine whether to delay the execution of a prisoner who was sick with a highly contagious disease.

But there is evidence that executions can become spreading events.

After the November execution of Orlando Hall, a Bureau of Prisons official revealed in a court filing that eight members of the execution team had tested positive for the coronavirus, five of whom planned to travel to Terre Haute for the December executions. In a separate court filing, Hall’s spiritual adviser said he also tested positive after attending the execution.

There is also a precedent of sorts for citing the virus as a cause for postponement. The third person scheduled to be executed before Trump leaves office is Lisa Montgomery, the only woman on federal death row. She is not held at Terre Haute and has not tested positive for the virus.

But after the government announced its intention to execute Montgomery — convicted of murdering a pregnant woman and abducting her unborn child — two of her lawyers traveled to visit her at a federal prison in Texas. They later tested positive for the coronavirus.

A court order then briefly enjoined the government from executing Montgomery, who was scheduled to die this month, and the Justice Department delayed her execution until January.

Shawn Nolan, a lawyer for Higgs and chief of the Capital Habeas Unit at a Pennsylvania-based federal community defender office, contended that the Justice Department and the Bureau of Prisons “recklessly disregarded” the safety of staff members, prisoners and lawyers. He also said “the word on the row is that 29” prisoners have tested positive.

“We have been saying for quite a while that these superspreader executions should not be proceeding during the pandemic,” Nolan said in a statement, urging the government to halt the upcoming executions. “Now it could not be more clear that the decision to move forward with these executions has had a terrible impact on the numbers of inmates and guards testing positive at Terre Haute.”

In a statement, a spokesperson for the Bureau of Prisons, Kristie Breshears, confirmed that an unspecified number of inmates in the special confinement unit had tested positive for the coronavirus and added that those who were positive or symptomatic were placed in isolation. The bureau found that an employee assigned to the special confinement unit tested positive, but this employee had no contact with staff members involved in the recent executions, she said.

“While a number of inmates have tested positive for Covid-19 at USP Terre Haute in recent weeks, many of these inmates are asymptomatic or exhibiting mild symptoms,” she said. “Our highest priority remains to ensure the safety of staff and inmates.”

It remains unclear what the Bureau of Prisons may do if one of the inmates is infectious at the time of his scheduled execution. Robert Dunham, executive director of the Death Penalty Information Center, said that a 2019 addendum to the execution protocol did not stipulate what to do if a prisoner is sick.

Of the 1,239 total inmates at the federal penitentiary in Terre Haute, the bureau has reported 252 active coronavirus cases. The population of death row prisoners there, all-male, includes fewer than 50 men — a number that shrank significantly after the Trump administration’s latest string of executions.

Ruth Friedman, director of the Federal Capital Habeas Project, likened the prisoners to “sitting ducks,” unable to protect themselves from prison staff members who may spread the virus.

“It’s the Bureau of Prisons’ job to keep them safe and healthy,” she said. "They’re much more interested in rushing through executions than making sure COVID doesn’t spread.”