BOP defends COVID procedures as inmates challenge upcoming executions

Facing questions about COVID-19 protocols from an Indiana judge, the federal government is defending its plan to move forward with scheduled executions this month and next despite the continued surge of reported virus cases.

Lawyers for the Department of Justice defended Bureau of Prisons safety protocols that will be followed when the execution of Brandon Bernard, scheduled for Thursday, is carried out. The execution of Alfred Bourgeois is scheduled for Friday, followed by three additional executions scheduled for mid-January 2021, all of which will be carried out at the Federal Correctional Complex in Terre Haute.

Two inmates housed in the medium-security Federal Correctional Institution on the Terre Haute complex are seeking a preliminary injunction against the upcoming executions, claiming that carrying them out would place other inmates, and the greater Vigo County community, at risk of COVID-19 exposure in violation of the Eighth Amendment.

“Each execution will result in large numbers of people from across the country coming to Terre Haute, where they will interact with members of the local community at hotels and restaurants, interact with each other and prison staff when they go to the prison, and then congregate in small, confined spaces in the prison as the executions are carried out,” a Nov. 30 filing from plaintiffs’ lawyer John Maley of Barnes & Thornburg LLP reads. “This poses an enormous health risk not only to the individuals who are involved in the executions, but to every inmate in the prison’s general population, all the prison’s employees (who are as concerned as the inmates), and the hundreds if not thousands of individuals outside the prison who subsequently interact with people who attended or assisted with the executions or are in the general prison population. … The requested preliminary injunctive relief will prevent this enormous risk.”

The plaintiffs – inmates Patrick Smith and Brandon Holm, neither of whom are on death row – are also represented by lawyers with Perkins Coie LLP in Washington, D.C. and New York City.

In a Friday order, Chief Judge Jane Magnus-Stinson of the U.S. District Court for the Southern District of Indiana ordered the federal government to answer several questions related to the BOP’s coronavirus safety procedures. Those questions included:

• How many Bureau of Prisons personnel participating in the executions will be traveling from out-of-state?
• What actions are the BOP taking to comply with CDC guidelines?
• Are out-of-state BOP execution team members quarantining upon their arrival to Indiana?
• Are BOP execution team members being tested for COVID-19? With what frequency?
• Are BOP execution team members segregated from other BOP staff?
• How many members of the BOP execution team will concurrently carry out normal duties at FCC Terre Haute?
• To what extent is the BOP execution team segregated from other BOP staff at FCC Terre Haute?

Additionally, Magnus-Stinson noted that a BOP staffer tested positive for COVID-19 after interacting with members of the execution team. After learning about this diagnosis related to the case of Hartkemeyer v. Barr, “what efforts at contact tracing were made? Did the BOP discover additional cases of COVID-19 amongst BOP staff … or inmates as a result of contact tracing?”

In its reply in opposition to a preliminary injunction, the Bureau of Prisons answered those questions largely through the declaration of T.J. Watson, complex warden of the Terre Haute FCC. Watson maintained that “(t)he BOP and FCC Terre Haute have implemented rigorous safeguards and precautions in light of the COVID-19 pandemic. The BOP is following the guidance and directions from the World Health Organization (WHO), the Centers for Disease Control (CDC), the Office of Personnel Management (OPM), the Department of Justice, and the Office of the Vice President.”

As to the execution team specifically, Watson said the team is comprised of about 40 BOP employees who do not work at FCC Terre Haute. Members “(do) not quarantine upon arriving in Indiana, as they generally arrive only a few days prior to a scheduled execution and must complete various time-sensitive tasks upon their arrival. To the greatest extent possible, the execution team generally does not enter the FCI (where Plaintiffs are housed),” or other inmate locations while at the Terre Haute facility.

“After an execution, the BOP execution team members are afforded an opportunity to test for COVID-19,” according to Watson’s declaration. “FCC Terre Haute staff are advised and encouraged to obtain a test if they had a known exposure or experience symptoms. They are not permitted to return to work until they are symptom-free. Of course all individuals are free to seek testing in the community.

“Approximately 5-7 members of the BOP execution team have historically elected to be tested prior to returning to their home communities,” the declaration continues. “COVID tests are conducted on a voluntary basis.”

As to the positive case disclosed during the Hartkemeyer litigation, Watson said “(c)ontact tracing was immediately initiated to determine with whom this staff member had come into close contact. The staff member’s contacts were determined by the use of video as well as his personal recollection. No additional cases of COVID-19 were discovered as a result. BOP will continue to conduct the same contact tracing procedures if additional staff members test positive in the future.”

In addition to answering Magnus-Stinson’s questions, the government’s reply also contested the inmates’ Eighth Amendment argument. The defendants said the plaintiffs lack standing because they themselves are not on death row, and even if standing is established, their constitutional claim could not succeed.

“BOP’s assiduous efforts to mitigate the risks of COVID-19, both generally and with respect to executions, preclude the plaintiffs from making either showing, particularly given the Supreme Court’s repeated admonitions that courts applying the Eighth Amendment must give due regard to the need for prison officials to balance competing objectives,” government lawyers wrote. “The objective that plaintiffs seek to preempt here — the imposition of duly imposed sentences of death for extraordinarily heinous crimes — is among the weightiest conceivable.”

In a reply filed Monday, however, the plaintiffs pointed to a footnote in the government’s brief that said, “Counsel has been advised that some execution team members have tested positive since the date of the last execution.”

“We are not told how many execution team members tested positive (‘some’), nor did Defendants choose to have Warden Watson or anyone else address the issue (in) a sworn declaration,” plaintiffs’ lawyers wrote. “But the fact that any execution team members tested positive after the most recent execution provides further, compelling evidence of the significant risk that conducting the scheduled executions will spread COVID-19 within FCC Terre Haute (and beyond).

“The risk is not ‘speculative.’ And that risk amply supports Plaintiffs’ standing as well as the merits of their Eighth Amendment claim.”

The case is Patrick R. Smith and Brandon S. Holm v. William P. Barr, et al., 2:20-cv-630.

The litigation comes amid a political backdrop regarding federal executions that could soon change with the inauguration of President-elect Joe Biden.

According to a report from the Associated Press, lame duck presidents have historically deferred to their successors on policies about which they differ. In this case, President Donald Trump is known as the most prolific execution president in more than 130 years, while Biden has publicly opposed capital punishment.

Biden is expected to end the Trump administration policy of carrying out executions as quickly as the law allows, AP reports, though his long-term approach to the death penalty remains unclear.