Judge declines to stop federal executions because of COVID

A federal judge in Indiana has declined to put a hold on upcoming federal executions, finding that although the executions likely present a COVID-related risk, the inmates who sued to stop the executions have not shown that they personally will be at risk of contracting the virus.

Chief Judge Jane Magnus-Stinson of the U.S. District Court for the Southern District of Indiana on Tuesday denied the preliminary injunction requested by Patrick Smith and Brandon Holm.  Smith and Holm are both incarcerated at the federal prison in Terre Haute, though neither is on death row and neither interacts with death row inmates.

“Circuit precedent arising from prior executions makes clear the nearly limitless discretion the Attorney General possesses in conducting federal executions,” Magnus-Stinson wrote Tuesday. “The only limitation to such discretion argued here is the Eighth Amendment to the United States Constitution, and the plaintiffs have not met their burden of showing their constitutional claim is likely to succeed. That others, or a court, might exercise discretion differently in light of the risks presented by a deadly virus is not the relevant calculus.”

The inmates had sued to stop five upcoming federal executions scheduled to begin tomorrow with the execution of Brandon Bernard and continue Friday with the execution of Alfred Bourgeois. Three more are scheduled for January.

Smith and Holm had raised an Eighth Amendment claim, arguing that moving forward with the executions would put Terre Haute inmates and staffers, and the Vigo County community at large, at risk of contracting COVID-19. They claimed to have observed the “flouting” of COVID guidelines within the BOP facility and connected surges of COVID cases at the Terre Haute complex to the recent executions of other death row inmates.

The Bureau of Prisons pushed back on that argument, offering declarations from Terre Haute warden T.J. Watson and BOP regional counsel Rick Winter.

According to Watson, about 40 BOP employees participate in each execution at the U.S. Penitentiary in Terre Haute. All BOP and Terre Haute employees, inmates and visitors are required to follow national guidelines concerning social distancing and other COVID-related safeguards, the warden said, though “some” members of the execution team did test positive following the November lethal injection of Orlando Hall.

Winter’s declaration expanded on Watson’s, specifying that eight of the approximately 40 members of the execution team tested positive after Hall’s execution. Of those eight, five will participate in this week’s executions, one would be cleared to participate but has chosen not to for personal reasons, and two are not yet cleared to attend.

Also, a BOP staffer tested positive for the virus after interacting with the execution team. Magnus-Stinson previously asked the BOP to explain what steps it took after learning of that diagnosis, and Watson said contact tracing was conducted and uncovered no additional COVID cases.

Winter’s declaration also addressed allegations that two officials in the execution chamber with Hall were not wearing masks. According to Winter, those officials wore masks at all times except when communicating with Hall or each other.

Yusuf Ahmed Nur, who had served as Hall’s spiritual adviser, tested positive for COVID-19 after the November execution. Nur claimed he got the virus because he participated in the execution — during which he said there were multiple COVID risks present — but Magnus-Stinson added that “the source of his illness is uncertain.”

Such circumstances, the inmates argued, means that moving forward with the executions would demonstrate deliberate indifference to their health and safety. Though Magnus-Stinson rejected the government’s argument that the plaintiffs lacked standing, she also determined the inmates did not meet their Eighth Amendment burden.

“The plaintiffs make well-supported — though disputed — allegations that the defendants and prison staff could do more to prevent COVID-19 transmission in the prison,” she wrote. “… While certainly most disturbing, these allegations do not demonstrate a strong likelihood of success on the plaintiffs’ claims that the defendants have shown deliberate indifference by making the decision to proceed with executions.

“The plaintiffs also make well-supported — though disputed — allegations that executions, like any mass gathering, are risky during the COVID-19 pandemic. … But the plaintiffs will not be present for the scheduled executions, and the Seventh Circuit has made clear that the defendants have nearly unfettered discretion to schedule executions, pandemic or no,” the chief judge continued, citing Peterson v. Barr, 965 F.3d 549, 552-53 (7^th Cir. 2020).

As for the alleged link between increased cases at the facility and recent executions, Magnus-Stinson noted that Vigo County as a whole also saw a spike in cases at the same time the BOP facility did.

“…(T)he correlation is not consistent after each execution, and the most reasonable inference to draw from the plaintiffs’ evidence is that FCC Terre Haute’s infection rates are driven by the rates of infection in Vigo County. For each notable increase in positive cases at FCC Terre Haute, there is a corresponding increase the prior two-to-three weeks in Vigo County,” she wrote. “… The correlation is not definitive, to be sure, but it seriously undermines the plaintiffs’ contention that executions are driving the increases in positive COVID-19 cases. It is also consistent with the defendants’ argument that FCC Terre Haute staff are more likely to be infected outside of work than when interacting with the execution team.

“The plaintiffs appeal to common sense and imply causation from some level of correlation between executions and COVID-19 cases at FCC Terre Haute,” the chief judge wrote. “But without compelling scientific or statistical evidence, they do not have a strong likelihood of success on their Eighth Amendment claim.”

The case is Smith, et al. v. Barr, et al., 2:20-cv-630.