Associated Press Finds Federal Executions Were Likely COVID Superspreader Events

Inadequate test­ing, resis­tance to con­tact trac­ing, and poor social dis­tanc­ing prac­tices like­ly made the thir­teen fed­er­al exe­cu­tions in 2020 – 2021 COVID-19 super­spread­er events, the Associated Press has con­clud­ed. In the ten days after the December 10, 2020 exe­cu­tion of Brandon Bernard, 70% of pris­on­ers on fed­er­al death row and hun­dreds of oth­ers incar­cer­at­ed in the Terre Haute Correctional Complex where the exe­cu­tions took place test­ed pos­i­tive for COVID-19. At least a dozen oth­ers who par­tic­i­pat­ed in the exe­cu­tions, includ­ing media wit­ness­es, a spir­i­tu­al advi­sor, and cor­rec­tion­al staff who trav­eled from across the coun­try for the exe­cu­tions, also con­tract­ed the disease.

The pro­to­cols sur­round­ing the exe­cu­tions ignored pub­lic health advice for reduc­ing the spread of the virus and warn­ings from med­ical experts about the risks. ​“These are the type of high-risk super­spread­er events that the [American Medical Association] and [the Centers for Disease Control and Prevention] have been warn­ing against through­out the pan­dem­ic,” James L. Madara, the exec­u­tive vice pres­i­dent of the AMA, wrote to the Department of Justice on January 11, 2021, two days before the exe­cu­tion of Lisa Montgomery.

Prison staff report­ed­ly advised col­leagues to trav­el home before being test­ed for COVID, not­ing that this sequence would allow them to avoid hav­ing to quar­an­tine in Indiana. The Department of Justice said in a court fil­ing that only six mem­bers of the team that con­duct­ed the November 19, 2020 exe­cu­tion of Orlando Hall opt­ed to be test­ed while in Terre Haute. All six test­ed neg­a­tive, but with­in a few days, eight mem­bers of the team had test­ed pos­i­tive. Five of those eight were brought back for oth­er exe­cu­tions just a few weeks lat­er, which the Bureau of Prisons (BOP) insist­ed was in keep­ing with guid­ance from the Centers for Disease Control and Prevention (CDC) that called for at least ten days of iso­la­tion after a pos­i­tive test. Yusuf Ahmed Nur, the spir­i­tu­al advi­sor for Hall, also test­ed pos­i­tive after the exe­cu­tion. ​“I could not say no to a man who would soon be killed,” Nur wrote. ​“That I con­tract­ed COVID-19 in the process was col­lat­er­al dam­age” of exe­cu­tions dur­ing a pandemic.

When two media wit­ness­es informed the BOP that they had test­ed pos­i­tive for COVID after attend­ing the January 2021 fed­er­al exe­cu­tions, the Bureau made no effort to con­duct con­tact trac­ing and with­held the infor­ma­tion from oth­er exe­cu­tion wit­ness­es who poten­tial­ly had been exposed to the virus. Witnesses were required to wear masks but were dri­ven in vans with poor ven­ti­la­tion where social dis­tanc­ing was impos­si­ble, and the wit­ness rooms were too small to per­mit ade­quate social dis­tanc­ing. After wit­ness­es report­ed that mem­bers of the exe­cu­tion team had not worn masks dur­ing parts of the ear­li­er exe­cu­tions, a fed­er­al judge in Indiana ordered BOP to ensure that team mem­bers wore their masks. Even after that court order, how­ev­er, wit­ness­es said an exe­cu­tion­er and a U.S. Marshal removed their masks dur­ing one of the January 2021 exe­cu­tions and BOP offi­cials claimed in affi­davits sub­mit­ted to the court that they had sub­stan­tial­ly com­plied with the court order.

Other BOP poli­cies also like­ly con­tributed to the spread of the virus, AP found. Prison staff were deemed ​“clear to work” if they were not expe­ri­enc­ing COVID symp­toms, with­out test­ing to deter­mine if they were asymp­to­matic COVID car­ri­ers. Even when staff mem­bers trav­eled to par­tic­i­pate in exe­cu­tions, they were not required to be test­ed for the dis­ease. ​“We can­not force staff mem­bers to take tests, nor does the CDC rec­om­mend test­ing of asymp­to­matic indi­vid­u­als,” an agency spokesper­son told AP. 

After Dustin Higgs and Corey Johnson test­ed pos­i­tive in December, death row was put on lock­down. But rather than delay their exe­cu­tions, BOP con­tin­ued to move the two men around the prison to use phones and email to com­mu­ni­cate with their lawyers as their exe­cu­tions approached. Those move­ments eas­i­ly could have spread the virus to the guards who accom­pa­nied the two prisoners.

“The exe­cu­tions at the end of Donald Trump’s pres­i­den­cy, com­plet­ed in a short win­dow over a few weeks, like­ly act­ed as a super­spread­er event, accord­ing to the records reviewed by AP,” the news ser­vice said. ​“It was some­thing health experts warned could hap­pen when the Justice Department insist­ed on resum­ing exe­cu­tions dur­ing a pandemic.”