ACLU Lawsuit Seeks Information on Cost and Public Health Risks of Federal Executions

The American Civil Liberties Union (ACLU) and American Civil Liberties Foundation have filed a law­suit against the Federal Bureau of Prisons (BOP) seek­ing a court order requir­ing the BOP to dis­close how much the fed­er­al government’s resump­tion of fed­er­al exe­cu­tions is cost­ing tax­pay­ers and what steps the gov­ern­ment has under­tak­en to assess and address the COVID-19 pub­lic health risks cre­at­ed by the exe­cu­tions. ​“As the nation faces both dire pub­lic health and eco­nom­ic crises,” the law­suit says, ​“the fed­er­al government’s actions pri­or­i­tiz­ing the use of American tax dol­lars on exe­cu­tions that could fur­ther spread the virus is a mat­ter of public concern.”

The ACLU filed suit in fed­er­al dis­trict court in Washington on August 21, 2020 under the fed­er­al Freedom of Information Act (FOIA), fol­low­ing the BOP’s asser­tion that even an ​“expe­dit­ed” response to the organization’s FOIA request could take as long as six months to process. Noting that two fed­er­al exe­cu­tions are sched­uled for the week of August 24, 2020, the law­suit seeks a court order direct­ing the ​“imme­di­ate release” of these records. The ACLU con­tends that “[s]uch an expe­dit­ed timetable is nec­es­sary giv­en the Federal Government’s plan … to pro­ceed with four addi­tion­al back-to-back exe­cu­tions at FCC Terre Haute at the end of August and in September.”

In jus­ti­fy­ing its infor­ma­tion request, the law­suit asserts that ​“carcer­al set­tings … are hotspots for the virus” and that ​“four­teen of the largest clus­ters of COVID-19 cas­es” in the United States are at jails or pris­ons. In response to the virus, the law­suit explains, the BOP in March 2020 ​“sus­pend­ed all vis­i­ta­tion — includ­ing legal vis­i­ta­tion — at its facil­i­ties nation­wide, a pol­i­cy that remains in effect today.” In turn, in mid-May, the Department of Justice (DOJ) issued inter­nal guide­lines that, the suit said, includ­ed ​“stay-at-home orders, requir­ing mask-wear­ing and strict social dis­tanc­ing when work­ing in their build­ings, restrict­ing all but essen­tial trav­el, and man­dat­ing a peri­od of quar­an­tine fol­low­ing such travel.”

Against this back­drop, and amidst record-high new COVID-19 infec­tions, the DOJ announced on June 15 its plan to resume fed­er­al exe­cu­tions after a 17-year hia­tus. The fed­er­al gov­ern­ment, the law­suit says, ​“amassed hun­dreds of peo­ple at the Federal Correctional Complex, Terre Haute (FCC Terre Haute)— a facil­i­ty with a known COVID-19 out­break — for the sole pur­pose of car­ry­ing out the [three] exe­cu­tions” the week of July 13. The gov­ern­ment went for­ward with these exe­cu­tions, the ACLU wrote, despite know­ing that ​“one of its staff mem­bers, who had been work­ing in the prison with­out a mask and attend­ing meet­ings with oth­er staff involved in the exe­cu­tions, test­ed pos­i­tive for COVID-19.” 

Following these exe­cu­tions, the suit states, ​“Vigo County, where FCC Terre Haute is locat­ed, expe­ri­enced a major surge in con­firmed COVID-19 cas­es. Despite this data, the fed­er­al gov­ern­ment now seeks to rush for­ward with four more exe­cu­tions at the end of August and September.”

The ACLU law­suit alleges that bring­ing togeth­er all the peo­ple need­ed for the exe­cu­tions expend­ed sig­nif­i­cant tax­pay­er dol­lars and aggra­vat­ed an already seri­ous pub­lic health risk at a time in which the nation’s econ­o­my was already reel­ing from the pan­dem­ic. BOP’s coun­sel has explained in pri­or court fil­ings that the agency ​“intend­ed to arrange and pay for the trav­el and lodg­ing of the spe­cial teams, the exe­cu­tion team, a num­ber of BOP admin­is­tra­tors, and the vic­tims’ family members.”

Recognizing that ​“health con­se­quences of the virus can be dev­as­tat­ing, long-last­ing, and dead­ly” and that fed­er­al exe­cu­tions require hun­dreds of per­son­nel, the ACLU on August 6, 2020 filed a FOIA request seek­ing records relat­ed to the virus and the high costs that fed­er­al executions impose.

The ACLU’s FOIA request seeks records relat­ed to COVID-19 at the prison, such as test­ing sta­tis­tics, con­tact trac­ing, and infor­ma­tion about staff mem­bers who were exposed to the staff mem­ber who test­ed pos­i­tive. It also seeks infor­ma­tion on the cost of the executions.

The suit cites a November 2019 BOP court dec­la­ra­tion that more than 300 peo­ple — not includ­ing wit­ness­es and lawyers — would be involved in the exe­cu­tions, includ­ing an ​“exe­cu­tion team ​‘consist[ing] of 40 BOP staff mem­bers’ [from] a ​‘wide range of cor­rec­tion­al and admin­is­tra­tive posi­tions,’ some of whom will require trav­el and lodg­ing arrange­ments, and who will spend sev­er­al days before the exe­cut­ing prac­tic­ing and prepar­ing for the exe­cu­tion.” Another esti­mat­ed 200 FCC Terre Haute staff would be ​“pulled away from their nor­mal duties” to per­form secu­ri­ty and sup­port for the exe­cu­tion. The gov­ern­ment also would bring in sev­er­al spe­cial­ized 50-mem­ber BOP teams from oth­er fed­er­al insti­tu­tions for secu­ri­ty and special operations. 

The suit also requests infor­ma­tion on the out­side con­trac­tors who are being uti­lized to plan and car­ry out the exe­cu­tions. The com­plaint notes that staff from var­i­ous oth­er fed­er­al, state, and local law enforce­ment agen­cies will be involved in execution-related activities.