Federal Executions During Covid-19 Put Innocent Lives at Risk

Federal Executions During Covid-19 Put Innocent Lives at Risk
Christopher Vialva grew up on death row. In 1999, at age 19, Vialva, along with a few other teenagers, carjacked and killed Stacie and Todd Bagley; he was later convicted of murder and sentenced to die. At the time, a doctor assessed his mental age to be 16. He was nearly illiterate, struggling to read a short paragraph and unable to remember the first sentence by the time he got to the last. In the two decades he spent in custody, he became an avid crocheter and a student of the Old Testament in the original Hebrew. When his lawyer, Susan Otto, asked why he wanted President Trump to grant him clemency he said, “I would like to preach and teach and learn. I think I can help. I remember what it was like being a 19-year-old kid with your thoughts all over the place and not having a clue what to do next. I think I could talk to kids and keep them from coming back [to prison] time after time.”

Today, just before 7pm local time, the federal government executed him.

Vialva is the first Black man to die in a wave of federal executions recently set off by US Attorney General William Barr, the first such use of capital punishment in 17 years. Vialva’s mother and legal team traveled to a federal facility in Terre Haute, Indiana for his execution despite the Covid-19 pandemic. “I may contract the virus,” Otto says. “It’s my duty to represent him. That is my risk.” According to information acquired by the American Civil Liberties Union as part of a Freedom of Information Act request, and the assessment of numerous experts and advocates, that risk is incredibly high.

Staff at prisons and jails across the United States have struggled and often failed to curb the spread of coronavirus among incarcerated people. The quarters are too close, and the population risks infection any time a new inmate arrives or a guard returns to work, which is why visitation has been suspended in the vast majority of facilities. Against that backdrop, executions look like a public health nightmare. They typically involve hundreds of people: an army of prison staff plus lawyers, spiritual advisors, and family members of the victim and perpetrator alike. “It would be incredibly inhumane to not allow people in while [the execution] is happening,” says Lauren Brinkley-Rubinstein, a community psychologist at UNC Chapel Hill and cofounder of the Covid Prison Project. “But it introduces so much more exposure risk.” For that reason, every state barring Texas and Missouri has chosen to stay all executions scheduled to occur during the Covid-19 outbreak, and even Texas has stayed a few.

The US government has chosen not to follow suit, even though federal executions require more travel since lawyers, family members, and others often have to cross state lines to reach the facility in Terre Haute where those executions take place. The compounded risk was no surprise to anyone. It was the subject of an unsuccessful ACLU lawsuit this summer. In response, the Bureau of Prisons said that safety measures like wearing face masks, administering Covid tests, and contact tracing would be taken during, before, and after execution proceedings. Data produced by the ACLU’s FOIA request shows that this was not always the case at the Terre Haute facility.

Staff members repeatedly failed to wear masks and were allowed to continue working. A staff member infected with Covid-19 admitted to having contact with “a lot” of staff members and “a lot” of inmates, including those on death row, in the days before an execution. Afterward, the BOP tested just 22 staffers who had had contact with the infected individual, even though he was at an execution planning meeting attended by about 90 BOP personnel. (“I’m not surprised at all,” says Brinkley-Rubinstein, whose data shows low rates of testing and contact tracing across all prisons.) Some declined testing and were allowed to continue working, and some infected staff members were permitted to return to work after just ten days with no symptoms despite never being retested. Before the first execution in July, FCC Terre Haute had reported just 11 cases of Covid-19. As of last week, that number is up to 209. “We know that in the wake of these executions there is a massive Covid-19 outbreak. We know that several prisoners at Terre Haute were hospitalized because of it,” says Cassandra Stubbs, director of the ACLU’s Capital Punishment Project. “With two executions this week, it’s only going to get worse.”

Executing people during a pandemic also puts lawyers in unprecedented positions. “I had a hearing that was my first time on the record in front of a judge advocating for my client of 17 years [Vialva], and we met by Zoom. Then our presentation to the Office of the Pardon Attorney was by Skype,” says Otto. “It’s very hard to advocate when you’re not in the room with someone. You miss out on nonverbal cues, and everyone is doing this from their home or distant offices. It’s very unnatural, and that was distinctly to my client’s disadvantage.”

Other lawyers felt they couldn’t even attend their client’s executions. “It’s a terrible thing to leave your client without his lawyer, but I personally decided I couldn’t take that risk,” says Ruth Friedman, director of the Federal Habeas Corpus Project and the lawyer representing Daniel Lewis Lee, the first man executed by the federal government this year. “It’s our obligation. To ask a lawyer to pit that obligation against their own health or risks to their family is unfair.” Hardly anyone—not Friedman, not the prosecutor, not the judge, not even the victims’ family members, who planned to bear witness but felt traveling to Indiana was too dangerous—wanted Lee’s execution to go forward. It did anyway.

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Why? When asked for comment, a Bureau of Prisons spokesperson said, “the safety of our staff and the members of the community are of the utmost importance,” and noted that masks will be issued and social distancing will be exercised “but may not be feasible based on the limited capacity of the media witness room.” The Department of Justice did not respond to repeated requests for comment. “They keep saying they have to do it for the victims and the public, but when major players in the case are opposed, who is the public you’re trying to satisfy?” Friedman says. The only available answer is the obvious one: politics. “It’s not coincidental that the federal government revved up scheduling executions in 2019 and had them come to fruition this summer,” says Austin Sarat, a political scientist at Amherst College who studies the death penalty in the United States. “The incumbent president is running as a law-and-order candidate.” If that’s true, Trump’s desire to look tough on crime has led to the execution of seven people this summer and sickened many more.

Laying blame with Trump does provide a speedy, expedient means of recourse for the general public. Political problems can be addressed on Election Day. “Cast your vote and let your elected officials know that you expect your government to focus on saving American lives and jobs and democracy,” says Amy Fettig, human rights lawyer and executive director of the Sentencing Project. All Democratic candidates for president this year were against the death penalty, which Sarat says is in keeping with America’s slow, steady march toward abolishing it entirely.

This week, the federal government executed two men at events attended by hundreds of people, risked spreading the virus further, and cost taxpayers an amount unknown even to them. (Stubbs says you can assume the number is high given the scale. “They’re like death conventions,” she adds.) A wealth of research shows that the system that put those men on death row is unjust, geographically biased, and racially biased against people of color and people who have killed white victims. Friedman urges people not to lose sight of the arbitrariness of the death penalty as a whole amidst this fresh chaos.

This week, while Black Lives Matter protests surged again after news broke that police officers would face no charges for killing Breonna Taylor, Christopher Vialva wrote thank you notes. In his final days, he scrambled to try to write back to every person who had sent him a letter wishing him well. “I never speak to the press,” says Otto. “The reason I am is because Christopher is very concerned that the American people know nothing about the people who are on death row.”

A quarter of them committed their capital offense before they could legally drink. According to Otto, Vialva puts it this way: “People decided that we didn’t deserve to live before we were even grown up.” Most are not the tattooed white supremacists or rabid mass murderers generally depicted. “He says ‘Nobody is here for singing too loud in church, but we are a community. We grieve with each other. We celebrate when somebody’s grandchild is born or graduates college or gets a promotion. We are not animals in cages. We’re human beings. It bothers me that nobody knows who we are,’” Otto adds. Now, perhaps, they do.


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