COVID Comes to Federal Death Row—It Is Time to Stop the Madness

Posted in: Criminal Law

The federal death row in Terre Haute, Indiana is now a COVID-19 hotbed.

The New York Times reports that 14 of the 50 people housed in that facility have contracted the disease. That’s one out of every four of those awaiting execution. Given the close confines of life on death row, this number is likely to grow.

Federal executions, like so many gatherings organized by the Trump administration, have turned out to be super-spreader events. Each execution brings more than 100 people to the federal prison. They include witnesses, additional prison staff, and members of the 40-person execution team.

Before its first execution in July, the Terre Haute federal prison had just 11 cases of COVID-19. By September, that number had jumped to 209. While it is impossible to determine the exact cause, the execution process no doubt contributed to this increase.

The coronavirus outbreak on the federal death row has spread beyond the inmates. Staff members have not escaped unscathed.

Eight of those involved in the November 19 execution of Orlando Hall contracted the virus. The Bureau of Prisons, claiming that they were following Centers for Disease Control and Prevention guidelines, allowed five of these same people to take part in the December executions of Brandon Bernard and Alfred Bourgeois. 

Lawyers representing federal death row inmates, including attorneys for Lisa Montgomery, whose execution is set for January 12, have also been felled by COVID-19.

The question now is how the Justice Department will respond to this unfolding humanitarian disaster. Will it disregard the collateral human cost and proceed with its grim plan to put three more people to death next month?

The upsurge of COVID-19 on the federal death row should not come as a surprise. It is very much in line with the pandemic’s devastating impact on prison populations across the country.

According to the COVID Prison Project, as of December 21, almost 289,000 prisoners had tested positive for the virus. In fact, the likelihood of getting COVID-19 in prison is 5.5 times higher than in the general population.

Since the start of the pandemic, some of the worst outbreaks in the country have been in prisons, such as at California’s San Quentin, where the coronavirus infected 75% of the those incarcerated there.

Prisons in Illinois have also been particularly hard hit. In the spring, 12 inmates at its Statesville Correctional Center contracted the coronavirus in a four-week period. To date, a total of 59 people have died from COVID-19 in Illinois prisons, most in the last two months.

In one Massachusetts prison, the number of COVID-19 cases spiked from 26 to 74 over the course of a single November weekend. It grew to 140 by the end of that week.

Because incarcerated people have higher rates of underlying conditions than the general population, they are also more likely to experience severe complications or death if they contract the virus. Their COVID-19 mortality rates also are higher than for other people.

So far this year more than 1,700 inmates have died from the virus. For those on death row, the risks are especially high.

The first death row inmate to die from COVID-19, Alfonso Salazar, passed away in April in Arizona. Subsequently outbreaks have also affected death rows in California, Florida, North Carolina, Ohio, Pennsylvania, and Texas. In Ohio, 23 of that state’s 140 death row inmates tested positive during the month of July alone.

In several other states, infections have occurred in facilities housing death row inmates, although the infection has not yet been reported among the condemned.

On many death rows, prison administrators and guards ignore precautions necessary to prevent the spread of COVID-19.

Responding to such negligence, inmates awaiting execution in Texas filed a class action lawsuit last May. They claimed that state officials had failed to “undertake take basic measures to protect [them] from the risk of disease and death” presented by the coronavirus pandemic. Their suit alleged that they were denied soap, clean towels, hand sanitizer, and masks. In addition, they noted prison staff do not consistently wear masks or clean gloves and do not clean common areas.

Those prisoners obtained an injunction from a federal district court, but the U.S. Court of Appeals for the Fifth Circuit, saying the inmates had not exhausted their administrative remedies, reversed and lifted that injunction.

The refusal of courts like the Fifth Circuit to intervene should not distract us from recognizing the devastating toll that COVID-19 has had on death row.

The California outbreak at San Quentin killed 13 people on the state’s death row. Those deaths are greater than the total number of people executed in California in the last 50 years. Ignoring these facts and defying common sense, the state’s Democratic attorney general and President-elect Biden’s nominee to be Secretary of Health and Human Services, Xavier Becerra, has continued to seek death sentences and to send more people to prison to await execution.

Unlike Becerra, state officials and judges across the country, including in the reddest of red states, have responded to COVID-19 by slowing or stopping capital prosecutions and by putting executions on hold. They have prioritized public health over punitiveness.

Starting in March, Missouri, Ohio, Tennessee, and Texas acknowledged the dangers of doing death penalty business in the usual fashion. However, they did not come to this realization out of sympathy or solicitude for the condemned.

Instead they correctly foresaw what the federal government is now learning the hard way, namely that proceeding with executions during the pandemic would be a dangerous and risky business for a large number of people.

As a result, during 2020 only seven people in five states were executed. This marks an almost 40-year low. Because most of those on death row in the US are in state facilities, this drop is significant.

Yet, at the same time, Trump, and his soon to be former Attorney General William Barr, ignored the pandemic and revived federal executions after a 17-year hiatus. From July through the end of December they put 10 people to death.

Now that COVID-19 has come to the federal death row, the Trump administration should use its remaining time to focus on saving rather than taking lives inside as well as outside prison.

Americans, whatever their positions on capital punishment, should demand that the federal government stop the madness and pause all executions. This would not only spare the lives of the people the administration intends to kill in January, it would also protect many others who would be exposed to the virus were the executions to go forward.

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