April 08, 2021 COVID-19

Transparency Concerns Arise Over Post-Execution COVID-19 Spikes

By Samantha O’Connell, DPRP intern, and Laura Schaefer, DPRP Staff Attorney
After back-to-back executions of Brandon Bernard and Alfred Bourgeois, 33 out of the 47 prisoners on federal death row tested positive for COVID-19

After back-to-back executions of Brandon Bernard and Alfred Bourgeois, 33 out of the 47 prisoners on federal death row tested positive for COVID-19

In the days following the back-to-back executions of Brandon Bernard and Alfred Bourgeois on December 10 and 11, 33 out of the 47 prisoners on federal death row tested positive for COVID-19. This represented 70 percent of the men on the row. When Orlando Hall was executed on November 19, there were only three active COVID cases within Terre Haute’s entire prison population, yet by December 29, that number had skyrocketed to 406. At least a dozen other people—including a spiritual adviser, media witnesses, and execution staff—also contracted the virus following the executions, though a lack of contract tracing means the real total could be even higher. Yusuf Ahmed Nur, the spiritual adviser to Orlando Hall, knew the health risks associated with attending Hall’s execution, but wrote, “I could not say no to a man who would soon be killed.” He stood just feet away from Hall in the execution chamber. A few days later, Nur tested positive for coronavirus.

Between prison staff, journalists, spiritual advisers, family members, and media witnesses, an execution at the federal prison in Terre Haute, Indiana, can involve hundreds of individuals, many of whom travel from out of state to attend. In a court declaration filed by the Bureau of Prisons (“BOP”) in 2019, the BOP described a 40-member execution team, 50-member special operations team, and 200 additional staff members required to carry out a standard federal execution. Before and after the most recent federal executions, individuals hired by the BOP traveled from across the country to Indiana, eating at local restaurants and staying multiple nights in hotels along the way. Many organizations protested the resumption of the federal executions of numerous grounds, including the ACLU, which warned that conducting the executions during the pandemic was unnecessarily “reckless and dangerous.” Of the approximately 1200 prisoners held in the Indiana penitentiary, 725 have contracted the coronavirus since the start of the pandemic, according to the BOP’s official website. While the Associated Press admits it is impossible to pinpoint exactly how infections within the prison began to spread, the media outlet cites medical experts’ opinions that execution staff, travelling across state lines from other prisons, likely triggered the explosion of COVID cases within the prison and amongst employees and journalists as well.

The 2020-1 federal executions, especially those completed in the lame-duck period of Trump’s presidency, “likely acted as a super spreader event,” the Associated Press posits. Since the executions concluded, AP reporters were able to obtain records showing that the prison staff involved in the 13 federal executions—who had direct contact with individuals infected with the coronavirus—were allowed to continue work duties even if they refused testing or declined to take part in contact tracing efforts.

Media witnesses, though required to wear masks, were taken to the death chamber in cramped vans where social distancing was not feasible. Even when watching the executions in small rooms behind glass, they struggled to remain six feet apart. The AP noted at least one instance where witnesses were stuck inside the poorly ventilated execution chamber for more than four hours. An anonymous source even told the AP that prison staff who were flown in to assist in the executions were encouraged to return home before getting tested, so that they would not be stuck quarantining in Terre Haute if the result came back positive.

On November 25, in light of concerns about COVID spread throughout the penitentiary, federal prisoners Patrick R. Smith and Brandon S. Holm filed a class-action lawsuit, claiming the resumption of executions during the pandemic has put Terre Haute prisoners at life-threatening risk and demanding that the December 2020 federal executions be paused. Though the Indiana district judge did not ultimately end up halting the upcoming executions, she did order the BOP to comply with certain COVID-19 protocols before it could proceed with the January 2021 executions.  “Performing further executions as planned, without additional precautions, substantially increases the risk of [more Terre Haute prisoners] contracting COVID-19,” the Chief Judge for Indiana’s Southern District Court, Hon. Jane Magnus-Stinson, decided.  

Her order provided that the BOP needed to enforce a mask mandate for all those involved in the remaining executions. In addition, the BOP was ordered to keep a log of individuals who had “direct contact” with anyone else during the execution process, meaning that they stood within 6 feet of one another for a total of 15 minutes or longer within a 24-hour window. According to the order, for two weeks following the executions, all staff were also to be tested daily, and contract tracing was to be conducted if any staff members tested positive within that timeframe.

Since the January 7 ruling, however, evidence indicates that the BOP withheld information regarding the ongoing spread of COVID at the remaining federal executions and failed to conduct contact tracing properly.

Two journalists contracted COVID-19 after attending the final three executions in January 2021, but the Bureau of Prisons failed to inform the other media witnesses in attendance of their positive test results or to perform proper contact tracing. One of the journalists, George Hale of Indiana Public Media, tested positive for the virus exactly one week after witnessing Corey Johnson’s execution on January 14. He reached out to the BOP within hours of the test result, believing it would be the fastest and most efficient way to start the contact tracing process. In reply, he received the following email:

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.

In fact, Hale began experiencing a mild headache and fatigue just 20 hours after the execution, although he originally attributed these symptoms to the stress of witnessing the execution, not the coronavirus. Since the BOP had chosen not to take any further action once he received his positive test result, Hale assumed the role of contact tracer himself, using his time off work in quarantine to try and reach out to every journalist he could remember interacting with while at the execution. “I didn’t, and still don’t, believe I was being overly cautious. The federal facility in Terre Haute is a death trap in more ways than one,” Hale wrote in his personal account of the events, published by Indiana Public Media. “The last thing I wanted was to be responsible for infecting my colleagues with the deadly coronavirus. And I didn’t want any of the prison staff to get sick or spread it to their loved ones. I believed the prison bureau—whose media specialists always appeared to take the virus seriously—would notify the many people I encountered. They didn’t.”

The information and views provided in the American Bar Association (“ABA”) Death Penalty Representation Project’s blog do not constitute official statements by the ABA and do not represent official ABA policy. For more information, please visit our policy and statement pages.