Chaos Surrounds Attempts to Resume Federal Executions

As the U.S. Department of Justice seeks to resume fed­er­al exe­cu­tions after a 17-year hia­tus, the government’s rushed time­frame, the ongo­ing COVID-19 pan­dem­ic, and unre­solved issues involv­ing the lethal-injec­tion pro­to­col, and the vic­tims’ family’s rights have com­bined with alleged con­sti­tu­tion­al vio­la­tions in the cas­es of the three pris­on­ers slat­ed for exe­cu­tion this week to pro­duce a chaot­ic whirl­wind of last-minute litigation. 

Federal courts fac­ing com­pressed time­lines have issued rul­ings with just hours to spare before the first sched­uled exe­cu­tion: that of Daniel Lewis Lee, sched­uled for Monday, July 13, 2020 at 4 pm Eastern time. After the sched­uled exe­cu­tion hour had passed, the government’s appeal of an injunc­tion from a fed­er­al dis­trict court was pend­ing in a fed­er­al appeals court, the vic­tims’ family’s request to halt the exe­cu­tion to con­sid­er their request to be able to attend after the pan­dem­ic sub­sides was pend­ing in the U.S. Supreme Court, and Lee had request­ed the Court to review whether fed­er­al law pro­vid­ed a vehi­cle to review evi­dence that the pros­e­cu­tion uncon­sti­tu­tion­al­ly obtained his death sen­tence by false­ly inform­ing the jury that he had com­mit­ted a prior murder. 

The District Court injunc­tion was still in place at the sched­uled exe­cu­tion time, but Lee’s exe­cu­tion war­rant remains valid until mid­night on the 13^th. If the injunc­tion has not been over­turned before then, the gov­ern­ment will have to resched­ule his exe­cu­tion. The fed­er­al gov­ern­ment has sched­uled three exe­cu­tions in five days, with exe­cu­tions planned for Wesley Purkey on July 15 and Dustin Honken on July 17. It has sched­uled a fourth exe­cu­tion, that of Keith Nelson, on August 28. 

DPIC is track­ing all of the lit­i­ga­tion in the cas­es of Daniel Lewis Lee, Wesley Ira Purkey, and Dustin Lee Honken. For the most cur­rent updates on those cas­es, please vis­it our Federal Execution Updates page. DPIC Executive Director Robert Dunham has issued a state­ment on the efforts to resume fed­er­al exe­cu­tions. The full text is avail­able here.

Shortly before 11 am Eastern on July 13, the U.S. District Court for the District of Columbia grant­ed a pre­lim­i­nary injunc­tion halt­ing all of the sched­uled fed­er­al exe­cu­tions. The injunc­tion was grant­ed in a case chal­leng­ing the pro­posed lethal-injec­tion pro­to­col. The court expressed irri­ta­tion at the government’s rushed exe­cu­tion sched­ule. ​“The suc­ces­sion of last-minute rul­ings is the result of the Government’s deci­sion to set short exe­cu­tion dates even as many claims, includ­ing those addressed here, were pend­ing,” Judge Tanya S. Chutkan wrote. ​“The Government is enti­tled to choose dates, but the court can­not take short cuts in its oblig­a­tions in order to accom­mo­date those dates.” 

Judge Chutkan not­ed that ​“the pub­lic is not served by short-cir­cuit­ing legit­i­mate judi­cial process, and is great­ly served by attempt­ing to ensure that the most seri­ous pun­ish­ment is imposed in a man­ner con­sis­tent with our Constitution.” For these rea­sons, she con­clud­ed, ​“the court finds that it is in the pub­lic inter­est to issue a preliminary injunction.” 

The fed­er­al gov­ern­ment has filed an appli­ca­tion in the U.S. Supreme Court to vacate the injunction. 

Separate lit­i­ga­tion spe­cif­ic to the case of Daniel Lewis Lee result­ed in a brief injunc­tion imposed by an Indiana fed­er­al court on Friday, July 10, but the U.S. Court of Appeals for the Seventh Circuit lift­ed the injunc­tion over the week­end. Three fam­i­ly mem­bers of mur­der vic­tims Nancy Mueller and Sarah Powell are request­ing that Lee’s exe­cu­tion be delayed until it is safe for them to trav­el to Indiana to wit­ness it. Earlene Peterson, the moth­er and grand­moth­er of the two vic­tims, is 81 years old and has been advised by her doc­tor not to trav­el dur­ing the COVID-19 pan­dem­ic. She stat­ed, ​“I am very fear­ful of the virus due to my age, my med­ical con­di­tions, and the advice of my doc­tor…. I bought a full tank of gas for my car on March 10, and my tank is still full because I have not been going out almost at all for four months.” Her sur­viv­ing daugh­ter, Kimma Gurel, and grand­daugh­ter, Monica Veillette, joined her law­suit. They both have med­ical con­di­tions plac­ing them at height­ened risk for COVID-19. When Lee’s exe­cu­tion date was ini­tial­ly set in 2019, Peterson issued an emo­tion­al plea for clemen­cy, say­ing that exe­cut­ing him would dis­hon­or her daugh­ter and grand­daugh­ter and vio­late her beliefs. 

The family’s attor­ney rebuked the Attorney General for assert­ing that the exe­cu­tions were nec­es­sary to bring jus­tice for vic­tims’ fam­i­lies, then ignor­ing the con­cerns raised by fam­i­ly mem­bers. ​“Despite repeat­ed­ly stat­ing that it was pur­su­ing the exe­cu­tion of Lee on behalf of crime vic­tims and their fam­i­lies, the gov­ern­ment now argues that those vic­tims have no inter­est in the mat­ter,” the family’s attor­ney wrote. ​“The government’s motion belit­tles [the fam­i­ly mem­bers’] safe­ty con­cerns by refer­ring to their pur­port­ed trav­el ​‘pref­er­ences’ and sup­posed ​‘will­ing­ness’ to attend the exe­cu­tion.” The fam­i­ly ​“faces the unac­cept­able choice between exer­cis­ing their right to wit­ness the exe­cu­tion and risk­ing expo­sure to a deadly disease.” 

The family’s con­cerns were seem­ing­ly con­firmed on July 12, when the Justice Department said a staff mem­ber engag­ing in exe­cu­tion prepa­ra­tions at the Terre Haute prison had test­ed pos­i­tive for COVID-19. On July 13, Peterson, Gurel, and Veillette filed an appeal in the U.S. Supreme Court. 

Litigation is also pend­ing in the cas­es of Wesley Ira Purkey, sched­uled for exe­cu­tion on July 15, and Dustin Honken, sched­uled for exe­cu­tion on July 17. Religious advi­sors for both men have sought stays of exe­cu­tion because of the dan­ger of attend­ing an exe­cu­tion dur­ing the pan­dem­ic. Purkey also has lit­i­ga­tion in progress address­ing inef­fec­tive assis­tance of coun­sel and his men­tal com­pe­tence to be executed.