Under Court Order Requiring Protective Measures, Federal Bureau of Prisons Takes No Action After Media Witnesses to Executions Contract COVID-19

Despite being under fed­er­al court order to under­take pro­tec­tive mea­sures against the spread of COVID-19, the Federal Bureau of Prisons (BOP) took no action after being alert­ed that two reporters who had been media wit­ness­es to the fed­er­al exe­cu­tions at the Federal Correctional Complex at Terre Haute, Indiana in January 2021 had contracted COVID-19. 

Emails obtained by the Death Penalty Information Center (see pic­tures) show that Indiana Public Media reporter George Hale noti­fied Bureau of Prisons (BOP) offi­cials on January 21, 2021 and again on January 22 and January 26 that he had test­ed pos­i­tive for the coro­n­avirus. Hale also noti­fied BOP that his col­league Adam Pinsker had sub­se­quent­ly test­ed pos­i­tive for the virus. But, Associated Press reports, the BOP did not release this infor­ma­tion to the pub­lic, con­duct con­tact trac­ing, or noti­fy oth­er exe­cu­tion wit­ness­es who had been in close prox­im­i­ty to the COVID-positive reporters. 

BOP nev­er dis­closed the infor­ma­tion on its own voli­tion, but final­ly con­firmed it was aware of the pos­i­tive test results on January 27, 2021 in response to ques­tions from Associated Press reporters who also had wit­nessed the executions. 

BOP’s inten­tion­al refusal to ini­ti­ate reme­di­al mea­sures is the lat­est in a series of acts and omis­sions endan­ger­ing the pub­lic health through­out the course of 13 exe­cu­tions under­tak­en dur­ing a pan­dem­ic that has killed as many Americans as died in World War II. The pos­i­tive tests are the lat­est in a grow­ing list of death-row pris­on­ers, spir­i­tu­al advi­sors, and exe­cu­tion per­son­nel who have con­tract­ed the virus as a result of an exe­cu­tion process that has brought togeth­er more than 300 peo­ple from across the country.

Court records obtained by the ACLU showed that BOP failed to con­duct con­tact trac­ing for mem­bers of the exe­cu­tion teams who test­ed pos­i­tive after five exe­cu­tions in August, September, and December. Records were not avail­able for the December exe­cu­tions. The Justice Department pri­or­i­tized secre­cy over pub­lic safe­ty, claim­ing that con­tact trac­ing was ​“not always pos­si­ble for mem­bers of the exe­cu­tion team, giv­en the para­mount need for their con­fi­den­tial­i­ty due to the sen­si­tiv­i­ty of their occu­pa­tion and their unique mission.”

The BOP had been under fed­er­al court order to imple­ment health mea­sures after non-cap­i­tal pris­on­ers sued to block the exe­cu­tions because they had led to an explo­sion of coro­n­avirus cas­es in the Terre Haute facil­i­ty. On January 7, 2021, the week before the January set of fed­er­al exe­cu­tions, Judge Jane Magnus-Stinson of the United States District Court for the Southern District of Indiana ordered that the BOP enforce ​“mask require­ments” for the exe­cu­tion team, ​“main­tain con­tact logs” for those who have come in close con­tact ​“with any oth­er per­son dur­ing exe­cu­tion prepa­ra­tion,” and “[c]onduct thor­ough con­tract trac­ing for any [Federal Correctional Complex] staff mem­ber who tests pos­i­tive for COVID-19” for 14 days after close con­tact. The order only cov­ered BOP employ­ees and did not include oth­ers, like media wit­ness­es, who may have come into con­tact with BOP employees.

COVID-19 Notification to the Federal Bureau of Prisons

In an arti­cle for Indiana Public Media, reporter George Hale wrote about his expe­ri­ence attempt­ing to get BOP to respond to his COVID-19 diag­no­sis. ​“A week to the day after wit­ness­ing the exe­cu­tion of Cory Johnson, on Jan. 14, 2021, I received noti­fi­ca­tion that I test­ed pos­i­tive for COVID-19,” he wrote. ​“My col­league Adam Pinsker wit­nessed the exe­cu­tion of Dustin Higgs on Jan. 16. He received a pos­i­tive test result nine days lat­er.” He said that “[w]ithin hours of receiv­ing my test result on Jan. 21, I reached out to the U.S. Bureau of Prisons to make sure their staff knew to get test­ed. I want­ed to grant per­mis­sion to share my pos­i­tive test result with any per­son I encoun­tered. Most of the peo­ple we meet dur­ing the exe­cu­tions are anony­mous and this seemed to be the quick­est way to noti­fy them. It also seemed like the fastest way to noti­fy the many jour­nal­ists I encountered.” 

To the best of his knowl­edge, Hale asserts that the BOP did not con­tact any­one who was exposed to him. Numerous reporters and media wit­ness­es have indi­cat­ed they were not con­tact­ed by the BOP con­cern­ing Hale’s positive test. 

Hale sent his first email at 8:28 p.m. on January 21. The next after­noon, at 2:23 p.m., the BOP replied with an email stat­ing, ​“Thank you for this infor­ma­tion. The BOP com­pletes con­tact trac­ing with pos­i­tive indi­vid­u­als based on the CDC rec­om­men­da­tions (a close con­tact is some­one who was with­in 6 feet of an infect­ed per­son for a total of 15 min­utes or more start­ing from 48 hours before ill­ness onset until the time the patient is iso­lat­ed). Since you test­ed pos­i­tive on 1 – 21 and you were last at the facil­i­ty on Jan. 15, noth­ing needs to be com­plet­ed at this time. Thank you for noti­fy­ing us and I hope you have a speedy recovery.” 

Hale imme­di­ate­ly respond­ed with an email to BOP, sent at 2:41 p.m., clar­i­fy­ing that his COVID test had been admin­is­tered on January 19 and that he had received the results on January 21. Hale attached a copy of the sali­va-based COVID-19 poly­merase chain reac­tion (PCR) test results to his email. The report indi­cat­ed that the test had ​“detect­ed” evi­dence of COVID-19.

Hearing noth­ing fur­ther from BOP, Hale fol­lowed up with a third email at 5:19 a.m. on January 26. That email detailed the emer­gence of his COVID-19 symp­toms well with­in the 48-hour win­dow out­lined for con­tact trac­ing men­tioned in the BOP official’s email. 

Hale said he had begun expe­ri­enc­ing a headache on Saturday night, January 16, which last­ed for two days. ​“The last time I was at the media cen­ter was, of course, just after mid­night Saturday, Jan. 16 fol­low­ing Dustin Higgs’ exe­cu­tion,” he wrote, adding that “[a] col­league who wit­nessed that exe­cu­tion received a pos­i­tive COVID-19 test result yes­ter­day, three days after mine.”

Hale also said he was ​“par­tic­u­lar­ly con­cerned about the well­be­ing of three” BOP employ­ees with whom he had been in close prox­im­i­ty. ​“They are the dri­ver of van #1 on Thursday night, the staff mem­ber inside the wit­ness room, and [NAME REDACTED]. Due to the phys­i­cal impos­si­bil­i­ty of social dis­tanc­ing dur­ing these exe­cu­tions, I was well with­in six feet of Ms. [REDACTED] and the dri­ver for about 45 min­utes and inch­es from the oth­er staff mem­ber for about 30 min­utes. I don’t have direct con­tact infor­ma­tion for any of these peo­ple. I’d be grate­ful if you passed this infor­ma­tion along to them.”

In his arti­cle for Indiana Public Media Hale wrote, ​“after prison offi­cials received infor­ma­tion that might have helped pro­tect those wit­ness­es and their loved ones, they decid­ed to leave them in the dark.” BOP’s email response to Hale at 1:42 p.m. on the 26^th was a sin­gle line: ​“Thank you for the fol­low up, George. Be safe.”