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.”


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