When the U.S. prisons director visited the penitentiary in Terre Haute, Indiana, this past week, she stopped by the federal death row where Bruce Webster is in a solitary, 12-by-7 foot cell, 23 hours a day.
Webster's not supposed to be there. A federal judge in Indiana ruled in 2019 that the 49-year-old has an IQ in the range of severe intellectual disability and so cannot be put to death.
But four years on, the Justice Department and the Federal Bureau of Prisons haven't moved him to a less restrictive unit or different prison.
Why? His own lawyer, who secured a rare legal win in persuading a court to vacate Webster's 1996 death sentence in the kidnapping, rape and killing of a 16-year-old Texas girl, says she's baffled.
"How can I not get this guy off death row?," an exasperated Monica Foster said in a recent interview. "Well, I did get him off death row. But why can't I physically get him off death row?"
Asked about Webster's continued placement on death row, a Justice Department official said only that "the Bureau of Prisons is considering Mr. Webster's designation determination."
Webster's case illustrates chronic bureaucracy in the prisons system and the difficulties in getting anyone off death row. There's sometimes additional reluctance to act in death row cases given the nature of inmates' crimes.
In Webster's case, he and three accomplices kidnapped a sister of a rival drug trafficker in 1994, kicking their way into an Arlington, Texas, apartment as Lisa Rene frantically dialed 911. They raped her over two days, then stripped her, bludgeoned her with a shovel and buried her alive.
Bureau of Prisons Director Colette Peters has said she's committed to reforms. Her visit to Terre Haute was part of regular inspections of U.S. prisons. It came months after a lawsuit filed by the American Civil Liberties Union of Indiana seeking to end the solitary confinement of federal death row inmates, saying that practice results in severe psychological damage.
Several death row inmates told The Associated Press by email that Peters came through their unit on Tuesday and spoke to some prisoners. It's not known whether she saw Webster or discussed his case.
The Biden administration should see moving Webster as an uncontroversial if modest step toward fulfilling President Joe Biden's campaign pledge to stop federal executions for good, Foster argued.
"This case is a no brainer," the Indianapolis-based federal defender said. "There is zero political liability for doing the right thing here and moving him off death row."
Biden's Justice Dept. keeps hard line in death row cases
Death penalty opponents are frustrated Biden hasn't taken any steps to fulfill his campaign promise to end capital punishment at the federal level.
Webster, who wants to be transferred to a prison near his hometown of Pine Bluff, Arkansas, must be resentenced. It's supposed to be a formality because life in prison is the only available sentence.
When his lawyers and the Justice Department asked in joint 2021 motion for U.S. judge in Texas where Webster was tried in 1996 to resentence him, the judge refused, saying he lacked jurisdiction.
Judge Terry Means also chided his Indiana counterpart, Judge William Lawrence, for tossing Webster's death sentence, saying Lawrence had "brushed aside" jurors' finding, including that most rejected Webster's intellectual disability claims.
"That judgment is final," the government said about Means' ruling, adding that it is the department's position "that Mr. Webster is not currently subject to a valid death sentence."
Responsibility to get Webster off death row lies squarely with the Justice Department, Foster said.
The Justice Department executed 13 U.S. death row inmates, some of them Webster's friends, in the last months of Donald Trump's presidency. While Biden's Justice Department paused the executions and reversed decisions to seek death sentences in some cases, it continues to seek them in others.
Lawrence based his Webster ruling on Atkins v. Virginia, a landmark Supreme Court decision in 2002 ruling that executing those with intellectual disabilities violated Eighth Amendment protections against "cruel and unusual" punishment.
That decision hasn't prevented some inmates with such disabilities from being executed, according to the Death Penalty Information Center. It identifies 25 cases where that's happened since that ruling, including two federal inmates executed under Trump, Alfred Bourgeois and Corey Johnson.
Whether Webster qualified as intellectually disabled centered on three questions: Was his IQ significantly below average, did he show an inability to learn basic skills and was the onset of the disability apparent before age 18?
In his ruling, Lawrence cited tests putting Webster's IQ between 50 and 65, below the benchmark score for intellectual disability of 70. The average is 100.
During arguments, Webster's lawyers said he relied on others to tie his shoes late into childhood, and, as a teenager, had trouble playing card games because he couldn't distinguish between clubs and spades.
Prosecutors accused Webster of playing dumb. They said he intentionally answered IQ questions incorrectly to avoid the death penalty. They said proof of his aptitude included how, during a jail stint, he figured out how to pick locks on a food chute to slip into a women's section.
"Webster also has been able to hold a job, albeit it criminal in nature," a government filing added. "Being a successful drug dealer is no less demanding than holding any number of legitimate jobs."
The decisive evidence, however, were newly obtained Social Security records from before the killing indicating Webster's IQ was within the intellectually disabled range. That evidence, despite requests for it, wasn't made available at his trial.
Foster worries what could happen if Webster doesn't get off death row soon. Even though past rulings should prevent it, she fears that if Trump wins the presidency, his administration could seek to restore the death sentence.
If that happens, she said, "I'm concerned it could be carried out."
