Bureau of Prisons withheld info on COVID-19 diagnosis of journalists who witnessed executions

WASHINGTON (AP) - At least two journalists tested positive for coronavirus after witnessing the Trump administration's final three federal executions, but the Bureau of Prisons knowingly withheld the diagnoses from other media witnesses and did not perform any contact tracing, The Associated Press has learned.

The AP is not identifying the journalists, but has confirmed they both received positive coronavirus tests following the executions earlier this month at the Federal Correctional Complex in Terre Haute, Indiana.

The Bureau of Prisons just completed a record number of executions under former President Donald Trump, more than any previous administration. The reinstated death penalty began in July as the virus raged through the prisons, complicating Bureau of Prisons efforts as attendees sued over COVID-19 concerns in the confined execution chamber. Their concerns were founded; many attendees and Justice Department officials have gotten sick and the virus also spread among the death row inmates.

President Joe Biden has said he is opposed to the death penalty and will work to end its use but hasn’t yet specifically halted federal executions. Just days before Biden was sworn in, the Bureau of Prisons executed three death row inmates — Lisa Montgomery, Corey Johnson and Dustin Higgs. Both Johnson and Higgs had tested positive for coronavirus in the weeks before their executions.

One of the reporters promptly notified officials about the diagnosis on Jan. 21, just four hours after the positive test. But the Bureau of Prisons said it decided not to contact any other media witnesses and did not attempt to conduct a contact tracing investigation. The BOP only confirmed that officials had been aware of the positive test result for days when contacted by the AP on Wednesday.

The AP has witnessed every federal execution since the death penalty resumed.

Even though the reporter only became aware of the infection on Jan. 21, a spokesperson for the agency said that under its guidelines, officials would have initiated contact tracing only if they received word of an infection within two or three days of the execution, citing guidance from the Centers for Disease Control and Prevention. Because the notification came five days after the last execution early on Jan. 16, they did not initiate contact tracing or notify any of the other witnesses, the spokesperson said.

The Bureau of Prisons would not say Wednesday whether any staff members or witnesses had also tested positive.

The revelation again raises questions about how the federal Bureau of Prisons is conducting contact tracing to try to stop the spread of the virus as the number of cases continues to explode within the federal prison system. The agency’s contact tracing process is opaque, but BOP records show that some employees who had contact with inmates or others who had tested positive for the virus at the Indiana prison complex later declined testing.

The agency filed papers Wednesday certifying that it had complied with a court order to keep contact tracing records for staff members at the prison complex who may have tested positive for the virus within two weeks of the executions. That was in a case where the agency had violated a prior court order requiring execution staff members to wear masks.

The news of the journalists' positive tests was just the latest instance of witnesses or members of the Justice Department’s execution team testing positive for the virus, and it comes as advocates have decried the executions as virus super-spreader events. Lawyers for inmates at the prison complex had tried unsuccessfully to halt the Jan. 16 execution of Higgs after Bureau of Prisons and U.S. Marshals staff members removed their masks inside the execution chamber during the Jan. 14 execution of Johnson, in violation of a federal court order.

During Higgs’ execution, executioners were more diligent. When a marshal called from a chamber phone to ask if there were any impediments to proceeding with Higgs’ execution, he kept his mask on and shoved the receiver under it.

For all the executions, the media witnesses were packed into a small room inside the execution building, where social distancing was nearly impossible, and seated close together. They had traveled with other journalists and prison staff members in an unmarked van to a security screening and then to witness the execution. Reporters sometimes had to wait for 30 minutes or more inside the van — sitting within a foot or two of each other — before being led into the chamber building. They were also inside a media center, where reporters were at tables spaced about 6 feet apart, for several hours. The Bureau of Prisons required media witnesses to wear masks at all times, including inside the execution chamber.

A spokesperson for the Bureau of Prisons said reporters had been warned social distancing may not be possible, but masks were required to be worn in the media witness rooms and reporters had been offered additional personal protective equipment, including face shields, gowns and plastic suits.

The Justice Department disclosed in December that eight members of the specialized execution team — a group of about 40 employees who are brought into the Indiana prison for executions — had tested positive for the virus shortly after the execution of Orlando Hall in November. Only six members of the team opted to be tested for the virus before they left Terre Haute — and all tested negative, the agency said. But six others tested positive within a week and two more members of the team also tested positive a short time later.

The Justice Department has argued that contact tracing for executions is "not always possible for members of the execution team, given the paramount need for their confidentiality due to the sensitivity of their occupation and their unique mission."

The Bureau of Prisons also did not conduct contact tracing for execution team members who tested positive following executions in August, September and November, according to court records obtained by the American Civil Liberties Union.