COVID-19 and the Death Row Population of the United States

Over the past year we have witnessed the devastating global effects of the COVID-19 pandemic, as it has continued to cast a shadow over all aspects of our lives. This has been particularly apparent within the criminal justice system and on the 2.3 million people incarcerated throughout the United States. The pandemic has also impacted on the entire capital punishment system including condemned prisoners on death row, their families, lawyers, and those that work in the system of corrections.

As of May 4th, 2021, at least 396,712 people in prisons across the United States had tested positive for COVID-19. Of these, at least 2,588 had died of COVID-related causes, exceeding the total number of executions carried out in the entire modern era of the US death penalty (1,529). On San Quentin’s death row in California, where there have been no executions for 15 years, and Governor Newson’s moratorium resulted in the dismantling of the execution chamber in 2019, 13 death row inmates died from an outbreak of the virus. In Ohio, Romell Broom, who had survived a botched lethal injection in 2009, succumbed to the virus. COVID-19 outbreaks have been reported amongst death row inmates in Arizona, California, Ohio, and the federal prison complex in Indiana, although it is unclear exactly how many death row inmates have been infected or died from the virus.

Death Row Inmates

On the 30^th March 2020, one death row inmate wrote to me:

They're talking about bringing some of the people who are sick here to the prison because they are running out of room at the hospitals out there. I feel sorry for those people but I seriously hope that they find another place for them. Viruses spreads like wild fire in this place.

This inmate is currently housed on death row at the Louisiana State Penitentiary, commonly referred to as Angola, after the plantation that once operated there. Despite his concerns, inmates and pretrial detainees continued to be transferred across the state to Angola’s Camp J: a unit shut down in 2018 due to poor ventilation, crumbling infrastructure, and the inhumane treatment of prisoners. Similarly, the virus spread to San Quentin when prisoners were transferred from the California Institution for Men in Chino, a known COVID-19 hotspot.

California’s death-sentenced prisoners are particularly susceptible to the virus. They are an aging population, many of whom have medical conditions such as diabetes, heart disease, or hypertension, putting them at higher risk of becoming severely ill from the virus. This is not uncommon amongst death row populations, home to some of the most vulnerable individuals in all of the jails and prisons across the country.

Tony Rodriguez, an inmate on San Quentin’s death row, described how “[t]he alarms go off 10 to 15 times a day now. They’re responding to someone who’s not responding or barely moving [...] They’re telling us they’re going to test us and we’re waiting for that test every day”. A similar sense of abandonment, uncertainty, and despair is apparent in the below extracts, taken from a thread of emails from two inmates housed on Louisiana’s death row over the course of the COVID-19 pandemic:

... two officers who worked here just died from the virus. This is a little bit too close to home for me.

(Robert, 30/03/20)

I'm staying as safe as I can even though it makes me angry that they are giving masks to the guards and not the inmates. They should at least give a mask to people like me who are at high risks from this. But sadly, we get nothing. Some guys are using shirts and towels to make them but it is not the same. 

(Robert, 08/04/20)

The plan to stop sick people from coming here didn't work. They are still bringing them in. I had to go to the dentist the other day because of my teeth. And on top of this, they wouldn't even give me a mask knowing I'm at high risk because of my conditions. Thats how sewed up this system is. We just had our first casualty of the virus here. I hope that it doesn't get any worse.

(Robert, 20/04/20)

so we got the mask but its hard to breath in them i onle wear it when im around the men on the hall [...] the people of our country are dying....fast and cant no one save them...now the world knows what it feels like to have a death sentence....

(Billy, 06/07/20)

We just wish that they start the visits back up. Its been a while since I've seen my mom's, its driving me crazy. This virus has everything messed up. The warden says he doesn't know when things will open back up, and that only the governor can do it. 

(Robert, 09/10/20)

well im stil trying to get that visit lined up so ''no news yet'' .......

(Billy, 27/10/20)

The courts are still closed down so nothing is moving right now. It sucks but its understandable.

(Robert, 12/11/20)

Both of these inmates are in the process of undergoing the lengthy capital appeals process in Louisiana. This means that they are not yet eligible for execution. An execution is, in fact, a rare outcome of a death sentence in the US, and condemned offenders have a high probability of having their death sentences reversed on appeal. Further, in 2020 a total of six prisoners were exonerated from death row, bringing the total number of exonerations after wrongful conviction and being sentenced to death to 185. In other words, for every 8.3 people sentenced to death since the 1970s, one person has been exonerated. Yet the probability of premature death has increased as prisons housing death row inmates across the country have become transfer hubs and makeshift hospitals, leaving inmates to wonder whether such transfers are by design.

According to the Promise of Justice Initiative (PJI)’s Locked in with COVID-19 report, the Louisiana Department of Corrections (DOC) failed to take the necessary steps to prevent the spread of the virus within its facilities. They failed to conduct mass testing, provided inadequate medical care, and produced confinement conditions that violated values of both decency and humanity. Further, the DOC provided intentional misinformation about the virus’s spread and the steps that they were taking to mitigate this. “[T]he government has a special duty to care for people in its custody”, PJI asserts in its report. State and prison officials must “protect incarcerated people from cruel and unusual punishment [and] prevent substantial risk of serious harm” when detaining people during a global pandemic. Once again, this duty of care has been neglected.

Federal Executions

In addition to the general pandemic-related risks experienced by death row inmates, federal death row prisoners are particularly vulnerable.

In July 2020, then President Trump ended a 17-year hiatus on the federal death penalty, executing 11 men and two women in what can only be described as a killing spree. These executions have been referred to as unsafe, superspreader events. A letter sent to acting Attorney General Jeffery Rosen and signed by four former corrections officials, raised concerns about the final three federal executions taking place. A “short postponement”, they argued, “could literally save hundreds of lives”. Two days later, Lisa Montgomery became the eleventh federal death row inmate to be executed.

Documents obtained by the American Civil Liberties Union suggest that these federal executions were the likely cause of Federal Correctional Institution, Terre Haute’s COVID-19 outbreak. By September, the known cases of COVID-19 within the federal prison complex had risen from 11 to 209. This is unsurprising given the extensive team of nearly 300 staff members required to carry out each execution.

By January 2021, both Dustin Higgs and Corey Johnson, the final two inmates scheduled to be executed by the federal government, had contracted COVID-19. An emergency application for a stay of execution for both men was filed, stating that the interaction of COVID-19 and the lethal injection would produce “a sensation of drowning akin to waterboarding, [causing] significant pain and suffering” before rendering the condemned offenders unconscious.

Judge Chutkan briefly suspended the executions of both Higgs and Johnson, agreeing that “without injunctive relief [they] would be subjected to an excruciating death in a manner that is likely unconstitutional”. This order was later overturned; both Dustin Higgs and Corey Johnson were executed by the federal government within two days of their application being filed. In her 10-page dissent, Justice Sotomayor called attention to the “expedited spree of executions”, whereby the court had “consistently rejected inmates’ credible claims for relief”, ensured that the “prisoners’ challenges would never receive meaningful airing”, and “made weighty decisions [...] with little opportunity for proper briefing and consideration, often in just a few short days or even hours”. This, she argued, was not justice.

All 13 executions went ahead despite litigation and mitigating claims of extreme childhood trauma, intellectual disability, severe mental illness, and COVID-19 infection. Additionally, defence teams argued that due to the pandemic they could not complete adequate clemency work: “[T]o do a constitutional job on a death penalty case, you need to investigate the hell out of your client’s life [...] [Y]ou cannot do that during a pandemic”, argued Higgs’s lawyer, Shawn Nolan.

In the words of Justice Brennan: “the fatal constitutional infirmity in the punishment of death is that it treats ‘members of the human race as nonhumans, as objects to be toyed with and discarded’”. During the COVID-19 pandemic we have seen exactly this, highlighting the unrelenting cruel and inhuman nature of the US death penalty today.

Amelia Inglis is a DPhil candidate at the University of Oxford Centre for Criminology and Death Penalty Research Unit whose research focuses on the experiences of families of victims in cases where a death sentence was imposed on the defendant. Twitter: @InglisAmelia