The Trump administration has executed 10 people since mid-July — the most federal executions carried out in a year since 1896. The Trump Justice Department is so intent on keeping secret the identities of those involved in the process that they hired private executioners and paid them in cash, Propublica reported last week.
But that secrecy is also making it harder to contain the spread of the coronavirus. For months, the government has ignored clear signs that the executions are fueling COVID-19 outbreaks. And now, when members of the federal execution teams have tested positive for the virus, the Bureau of Prisons (BOP) has rarely conducted contact tracing because doing so could reveal the identities of the people who work the executions, the government admitted in a court filing.
At least nine BOP staff members have tested positive for the coronavirus after working on executions between August and November. This figure does not include any BOP staffers who may have gotten sick after working the two executions in December or staffers who declined to take a test or report their results.
Of the nine positive cases, BOP only conducted contact tracing on one employee — a deliberate effort to prevent team members’ acquaintances and colleagues from knowing they worked an execution.
“By way of explanation, the execution team is comprised of members from various BOP locations and was designed to protect the confidentiality of its members,” the government said in response to discovery questions in the lawsuit. “Therefore, when team members report back to their home institution, the institution staff may not know the employee was a member of the execution team in order to contract [sic] trace them, nor do they generally know of the identities of other staff members who are part of the execution team.”
This admission contradicts BOP’s previous assertions about contact tracing. In a court filing earlier this month, DOJ lawyers claimed that “if a staff member tests positive for COVID, BOP will immediately conduct contact tracing.”
BOP did not respond to a list of questions about its contact tracing policies and COVID-19 testing for staffers who work executions.
By failing to do contact tracing, the government is putting at risk not only the individuals who came into contact with the sick staffers at the executions, but all of the people those other individuals came into contact with after the execution when they may have been unwitting carriers of COVID-19. This includes the people incarcerated at the Federal Correctional Complex in Terre Haute, Indiana, which imprisons thousands of people, including most of the people on death row.
The revelations about BOP’s lack of contact tracing came in response to a lawsuit filed by two men incarcerated at the Terre Haute prison who are suing the government to halt executions until after the pandemic is under control and they have received a vaccine. The plaintiffs, Patrick R. Smith and Brandon S. Holm, argue that the executions put them and the other prisoners “at significant risk of serious illness or even death, for no good reason.”
Smith is scheduled to be released in January 2022 and Holm is eligible for release into a halfway house in April 2023. Both have medical conditions that put them at risk of serious illness or death if they contract COVID-19.
“By disregarding public health recommendations and holding federal executions that act as super spreader events, the federal government has spread disease and illness to witnesses, prison staff, attorneys, other prisoners and the broader community.”
- Cassandra Stubbs, director of the American Civil Liberties Union's capital punishment project
Executions are high-risk events for COVID-19 transmission because they require dozens of people to gather indoors in close proximity. Each execution involves a team of about 40 BOP staffers who typically travel to Indiana from out of state and work closely with the prison staff in Terre Haute. Members of the execution team are not required to quarantine once they arrive or undergo testing before the execution. Family members of the condemned and their victims, lawyers, members of the media, and demonstrators also travel to Indiana for each execution.
It has been clear for months that people are getting sick from the executions. In July, a BOP staff member who had attended meetings in preparation for executions tested positive for COVID-19. The staffer reported coming into contact with “Alot” of incarcerated individuals and did not always wear a mask. In November, the spiritual adviser who performed last rites at Orlando Hall’s execution tested positive a few days after being in the execution chamber with unmasked executioners. And earlier this month, Dustin Higgs and Corey Johnson, the last two people scheduled to be killed under the Trump administration, got sick too.
Johnson’s execution is scheduled for Jan. 14, Higgs’ on the next day.
As of Monday, the U. S. Penitentiary at the Terre Haute complex, the prison where federal death row is located, had 410 incarcerated people infected with COVID-19 — more than any other BOP prison in the country, lawyers for Smith and Holm wrote in a court filing. A month earlier, just four people incarcerated in the prison had the coronavirus.
“In the wake of the December executions, the Terre Haute prison saw a massive COVID-19 outbreak,” Cassandra Stubbs, director of the American Civil Liberties Union’s capital punishment project, said in an email, referring to executions on Dec. 10 and 11. “By disregarding public health recommendations and holding federal executions that act as super spreader events, the federal government has spread disease and illness to witnesses, prison staff, attorneys, other prisoners and the broader community. The priorities of this administration are crystal clear: It will go to unspeakable ends in its shameful quest to carry out a record number of executions.”