Terre Haute inmates renew bid to postpone executions as COVID cases rise in prison

Two inmates are renewing their bid to postpone upcoming executions at the Terre Haute federal prison, claiming this time to have an evidentiary link between recent executions and an outbreak of COVID-19 cases among inmates.

Patrick Smith and Brandon Holm on Monday filed a second motion for a preliminary injunction to postpone the federal executions scheduled for next month. Cory Johnson and Dustin Higgs are scheduled to die by lethal injection on Jan. 14 and 15, respectively. Lisa Montgomery had been scheduled to die by lethal injection on Jan. 12, but a judge this week vacated the order setting her execution date.

Smith and Holm are both inmates at the federal prison in Terre Haute, though they are housed in the medium-security Federal Correctional Institution, not the maximum-security U.S. Penitentiary that houses death row inmates.

Smith and Holm filed for an emergency injunction last month to delay the executions of Brandon Bernard and Alfred Bourgeois. Chief Judge Jane Magnus-Stinson of the Indiana Southern District Court denied the motion and the executions were carried out Dec. 10 and 11.

In her ruling on the first injunction motion, Magnus-Stinson wrote that “the evidence shows — and common sense dictates — that carrying out executions on prison property with prison staff involved creates some additional risk of COVID-19 infection for prisoners, including the plaintiffs.” However, she also found a lack of “sufficient evidentiary support” of a “causal relationship between the executions and the rate of COVID-19 infections in the general prison population” via “compelling scientific or statistical evidence.”

The plaintiffs sought to provide additional evidentiary support Monday, providing data on the number of inmates who have tested positive for the virus following recent executions, as well as the opinion of an infectious disease researcher who pointed to a “substantial risk” of COVID spread if the January executions proceed.

“The health of Plaintiffs and other putative class members is at stake if Defendants continue to hold executions at FCC Terre Haute,” the injunction motion reads “… The requested relief would postpone — not prohibit — further executions at FCC Terre Haute until inmates no longer face an unreasonable risk of contracting COVID-19 because of the executions.”

As of Monday, USP Terre Haute had more COVID-positive inmates than any other Bureau of Prisons facility in the U.S., the motion says.

On Nov. 27, four USP inmates were reported positive, the plaintiffs said. By Dec. 28, they continued, that number had risen to 410.

“… (W)e now know of eleven BOP employees who tested positive contemporaneously with participating in executions” in July, August, September and November, according to the motion. “… Unfortunately, with only one apparent exception, the BOP did not conduct contact tracing for Execution Team members who tested positive following the execution in August, September and November.”

To support their Eighth Amendment claim of unconstitutional prison conditions, Holm and Smith submitted the declaration of Nina Fefferman, an infectious disease researcher who has studied COVID-19 since February.

In her declaration, Fefferman wrote, “[I]t is my opinion that the plan to carry out executions during the week of January 11, 2021 poses a substantial risk of COVID-19 spread and illness to FCC Terre Haute prisoners, including those incarcerated at FCI Terre Haute. … The risk is compounded if a prison is overcrowded, which I understand is the case here … and if a prison fails to systematically test prison staff and inmates and then contract trace those staff and inmates who test positive, which appears to be the case at FCC Terre Haute. Holding executions also disrupts the existing precautions enacted at FCC Terre Haute to reduce the spread of COVID-19.”

Fefferman gave two examples: one of a Maine wedding that had 55 guests and one of a Boston conference that included 175 people. The former led to 177 COVID cases, including 82 at a correctional facility where a wedding guest worked, and the latter “may have led to as many as 300,000 becoming infected in Massachusetts, in other states, and in other countries.”

“The Court should issue a preliminary injunction that temporarily postpones all executions at FCC Terre Haute until Defendants can demonstrate that the executions do not create a substantial risk that Plaintiffs and other inmates will contract COVID-19,” the motion concludes. “The Defendants can make such a showing by demonstrating that an adequate number of inmates have received an effective vaccine, or that Defendants have modified the execution logistics to significantly reduce the risk of spreading COVID-19 in the Complex (e.g., by requiring testing of all visitors prior to participating in execution-related activities, requiring Execution Team members to quarantine for 14 days after arriving in Terre Haute, testing all FCC Terre Haute staff members who will be assisting in the execution before they begin that work, and requiring those staff members to quarantine for 14 days before returning to their regular duties within the prison).”

Magnus-Stinson has given the defendants until Jan. 4 to file a response in opposition, and the plaintiffs until Jan. 6 to file a reply. The case is Patrick R. Smith and Brandon S. Holm v. Jeffrey A. Rosen, et al., 2:20-cv-630.

As the litigation progresses, BOP officials have begun administering the vaccine to staffers and some inmates at the Terre Haute complex, according to the Associated Press. Johnson and Higgs are both among the inmates at the complex who have tested positive for the virus.

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