Federal Prisoners Facing Execution Contract COVID-19 in Outbreak Spread by Prior Executions

Two men sched­uled for exe­cu­tion by the fed­er­al gov­ern­ment in January 2021 are among the fed­er­al death-row pris­on­ers who have test­ed pos­i­tive for COVID-19 at the Federal Correctional Complex in Terre Haute, Indiana. Lawyers for Corey Johnson (pic­tured, left) and Dustin Higgs (pic­tured, below), announced that they had been noti­fied by the Federal Bureau of Prisons (BOP) that their clients had con­tract­ed the coro­n­avirus, amidst an out­break of the dis­ease at the prison in the wake of the fed­er­al exe­cu­tions per­formed there in November and December 2020. The New York Times report­ed on December 21, 2020 that at least 14 fed­er­al death-row pris­on­ers, and per­haps twice that num­ber, were infect­ed with the virus.

Johnson and Higgs are seek­ing to delay their sched­uled exe­cu­tions, argu­ing that the out­break makes fed­er­al exe­cu­tions even more dan­ger­ous for pris­on­ers, staff, lawyers, and oth­ers involved in the exe­cu­tions. In a state­ment issued on December 18, Johnson’s legal team not­ed that his diag­no­sis will ​“inter­fere with his attor­neys’ abil­i­ty to have mean­ing­ful con­tact with him dur­ing these crit­i­cal days before his sched­uled exe­cu­tion.” Both Johnson and Higgs are seek­ing clemen­cy based on sig­nif­i­cant legal issues in their cas­es, but their lawyers now can­not safe­ly meet with them.

The out­break in the Terre Haute facil­i­ty comes amidst sharp crit­i­cism that the fed­er­al government’s deci­sion to car­ry out a rash of exe­cu­tions in the mid­dle of the dead­liest pan­dem­ic in more than a cen­tu­ry flout­ed pub­lic health guid­ance and need­less­ly risked spread­ing the virus to the prison com­mu­ni­ty and beyond. At least eight mem­bers of the exe­cu­tion team involved in the November 19 exe­cu­tion of Orlando Hall sub­se­quent­ly test­ed pos­i­tive for the virus, as did Hall’s reli­gious advi­sor. Five of the infect­ed team mem­bers were slat­ed to par­tic­i­pate in the December 10 and 11 exe­cu­tions of Brandon Bernard and Alfred Bourgeois. 

As of December 17, more than 300 of the 1,239 pris­on­ers at Terre Haute have test­ed pos­i­tive, with 45 new cas­es record­ed in just 10 days. Ruth Friedman, direc­tor of the Federal Capital Habeas Project, described the fed­er­al death-row pris­on­ers as ​“sit­ting ducks” in their soli­tary con­fine­ment cells in the death-row Special Confinement Unit. ​“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.”

Bureau of Prisons spokesper­son Kristie Breshears said that the death-row pris­on­ers who had test­ed pos­i­tive for the virus had been placed in iso­la­tion. ​“Our high­est pri­or­i­ty remains ensur­ing the safe­ty of staff and inmates,” she said.

On December 17, Higgs’ attor­ney, Shawn Nolan, was noti­fied that Higgs had test­ed pos­i­tive for the coro­n­avirus. ​“This is sure­ly the result of the super spread­er exe­cu­tions that the gov­ern­ment has rushed to under­take in the heart of a glob­al pan­dem­ic,” Nolan said in a state­ment. ​“Following the two exe­cu­tions that took place last week and one oth­er two weeks pri­or, the COVID num­bers at the fed­er­al prison in Terre Haute spiked enormously.” 

Nolan, who is chief of the cap­i­tal habeas unit in the Philadelphia fed­er­al defend­ers office — which is assigned to rep­re­sent a num­ber of fed­er­al death-row pris­on­ers — told the New York Times that ​“the word on the row is that 29” pris­on­ers have test­ed pos­i­tive for COVID-19. The BOP has ​“reck­less­ly dis­re­gard­ed” the health and safe­ty of death-row pris­on­ers, prison staff, and lawyers, he said. Nolan said Higgs has asked fed­er­al pros­e­cu­tors to with­draw his January 15, 2021 exe­cu­tion date and that the defense team will seek judi­cial action if they refuse.

One day after Higgs’ coun­sel learned of their client’s COVID-19 infec­tion, BOP noti­fied Johnson’s coun­sel that he, too, had test­ed pos­i­tive. Echoing con­cerns that the fed­er­al exe­cu­tions could be super-spread­er events, Johnson’s lawyers Don Salzman and Ron Tabak said ​“the wide­spread out­break on the fed­er­al death row only con­firms the reck­less dis­re­gard for the lives and safe­ty of staff, pris­on­ers, and attorneys alike.”

The Bureau of Prisons has not dis­closed how many of the death-row pris­on­ers in Terre Haute have test­ed pos­i­tive for COVID-19. Two pris­on­ers serv­ing non-cap­i­tal sen­tences at Terre Haute have filed suit to stop the January exe­cu­tions, argu­ing that they endan­ger the health of all pris­on­ers at the facility.

Lisa Montgomery, the only woman on fed­er­al death row, had been sched­uled for exe­cu­tion on December 8. However, a fed­er­al court stayed her exe­cu­tion after her two lead lawyers con­tract­ed seri­ous cas­es of COVID-19 dur­ing the course of vis­it­ing Montgomery in the Texas fed­er­al prison in which she is incar­cer­at­ed. The Department of Justice has resched­uled her exe­cu­tion for January 12. 

Dustin Higgs is seek­ing clemen­cy because he undis­put­ed­ly did not kill any­one. His co-defen­dant, Willis Haynes, shot and killed three peo­ple, but received a life sen­tence. Prosecutors argued that Higgs ordered the killings, but the only evi­dence for that the­o­ry was the tes­ti­mo­ny of a third co-defen­dant, Victor Gloria, who received a sub­stan­tial deal in exchange for his tes­ti­mo­ny. Corey Johnson also has filed a clemen­cy appli­ca­tion, argu­ing that he is intel­lec­tu­al­ly dis­abled and there­fore may not law­ful­ly be exe­cut­ed. Three lead­ing nation­al experts have exam­ined Johnson and con­clud­ed that he has had intel­lec­tu­al dis­abil­i­ty since child­hood that has impaired his every­day func­tion­ing through­out his life. Both Johnson and Higgs have stel­lar behav­ioral records in prison, and their lawyers argue that nei­ther pris­on­er presents a dan­ger if giv­en a reduced sentence.