FOIA Data Reveal Inadequate Testing and Precautions, Followed by COVID-19 Outbreak and Deaths

WASHINGTON — The American Civil Liberties Union released findings from documents today that were requested last month under the Freedom of Information Act related to the federal executions that have taken place in Terre Haute, Indiana since July. Specifically, the FOIA request sought information related to COVID-19 infections and the risks caused by these super-spreader executions, and the cost associated with carrying them out.

“The newly disclosed data from the Bureau of Prisons shows the total inadequacy of its efforts to uncover COVID-19 infections among staff and prisoners – and why the true number of infections is likely much higher than the alarming number of cases reported on its website,” said Cassandra Stubbs, director of the ACLU’s Capital Punishment Project. “Two people died at Terre Haute prison last week from COVID-19. Those deaths were part of a larger outbreak in the wake of the federal government’s decision to carry out an unprecedented number of executions there these past few months during a deadly pandemic. The government’s rush to kill has caused senseless risk for incarcerated people, prison staff, and everyone who lives in Terre Haute, Indiana.”

The data the ACLU has received so far points to three key findings. We expect to receive more data about the cost of these federal executions on October 18. The federal government plans to execute two more people — William LeCroy and Christopher Vialva — at Terre Haute this week.

1. Contract tracing has been insufficient. Due to discovery in the ACLU’s suit, Hartkemeyer v. Barr, we learned that a BOP staff member involved in the execution preparations had tested positive for COVID-19 just days before the first federal execution took place on July 14. We also learned that the staff member, contrary to BOP promises otherwise, had worked without a mask. Our FOIA request asked for all documents related to the contact tracing BOP conducted to identify staff and prisoners at risk from this reckless exposure. The BOP only identified two documents as relevant:

  • A “staff positive form,” based on an interview with the infected staff member. This form shows that the infected staff member was a custody officer who had extensive contact in the immediate days before the execution with “a lot” of staff and “a lot of prisoners,” including death row prisoners. He did not wear a mask repeatedly while working.
  • The “staff testing document,” a list of the COVID-19 testing conducted by BOP of Terre Haute staff, shows that BOP conducted only limited testing of staff members exposed to the infected staff member. BOP tested just 22 staff members even though a previous declaration from BOP counsel in the lethal injection lawsuit states that a much larger number of people attended the same meetings with the infected staff member who did not wear a mask. The BOP infected staff member attended training meetings of teams described as comprising 50 members, in addition to his contact with multiple staff within the prison. BOP did not even offer testing to all staff exposed, let alone follow up on that testing.

2. Testing has been similarly inadequate. The disclosed FOIA documents also indicate that several staff who were exposed to the infected staff member declined testing. The documents show that BOP has adopted a risky “new policy that allows infected staff to return to work after just 10 days of no symptoms, without being retested for the virus.

3. The recklessness has resulted in severe illness and death. In addition to the three deaths that the BOP has reported since these executions — two of which were last week — the new documents reveal that several prisoners at FCC Terre Haute have been hospitalized from COVID-19.

According to the BOP’s website, there were 206 people at Terre Haute Correctional Complex who have tested positive for COVID-19 on September 18. Two weeks before the first federal execution took place there, there were 11 positive cases. This is likely a serious undercount: The BOP has only administered 722  tests since March, less than a third of the 2,397 people incarcerated there.

The documents uncovered from our FOIA request are available here: staff testing, contact tracing, testing (active), testing (inactive), and recoveries.

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