The Federal Government Restarts Federal Executions Amid Procedural Concerns and a Pandemic

Posted on Jul 20, 2020

USP Terre Haute, the location of federal death row

USP Terre Haute, the loca­tion of fed­er­al death row

The federal government executed Daniel Lewis Lee the morning of July 14, 2020. His execution was the first conducted by the federal government in seventeen years, and it was followed closely by the executions of Wesley Ira Purkey (July 16) and Dustin Lee Honken (July 17). With these executions, the federal government has joined the small minority of jurisdictions that conduct executions and the even smaller number of jurisdictions that are willing to pursue them in the midst of the worst global pandemic in generations. The resumption of executions along with the government’s disregard for procedural protections and established norms firmly place it in the “outlier” category at a time when support for capital punishment is at a historic low.

2019: The Federal Government’s First Attempt at Restarting Federal Executions Up

On July 25, 2019, the Department of Justice (DOJ) announced that the federal government intended to restart federal executions and that Attorney General William Barr had directed the Federal Bureau of Prisons (BOP) to adopt a new protocol specifying that federal executions would be carried out using the drug pentobarbital. Although the federal government had not conducted any executions in sixteen years, Barr directed the BOP to schedule five executions in a five-week period, with the first three executions scheduled over a period of five days. The BOP set execution dates for Daniel Lewis Lee (December 9), Lezmond Mitchell (December 11), Wesley Ira Purkey (December 13), Alfred Bourgeois (January 13), and Dustin Lee Honken (January 15).

Prior to Barr’s announcement, the last federal death warrant was issued for Bruce Webster on April 16, 2007. Webster’s execution was stayed, and his death sentence was subsequently vacated on June 28, 2019 when a federal district court judge found Webster intellectually disabled, making him ineligible for the death penalty. Critics of the federal death penalty argue that it is plagued by many of the same problems as state death-penalty systems, including racial bias (55% of defendants sentenced to death in the last decade were people of color), geographical arbitrariness (just three states – Virginia, Texas, and Missouri – are responsible for nearly half of all federal death-row prisoners), and disparities in the quality and funding of defense counsel.

After the announcement of execution dates, the government’s short-circuiting of established rulemaking procedures and its compressed execution schedule set off a flurry of litigation challenging the legality and constitutionality of the execution protocol, as well as case-related litigation on the constitutionality of the individual executions. The potential resumption of federal executions also galvanized a variety of stakeholders to speak out against the government’s plans.

Widespread Criticism of Plans to Resume Federal Executions Up

Timeline

  • July 25, 2019: The fed­er­al gov­ern­ment announces a new exe­cu­tion pro­to­col and exe­cu­tion dates for five fed­er­al death row pris­on­ers: Alfred Bourgeois, Dustin Lee Honken, Daniel Lewis Lee, Lezmond Mitchell, and Wesley Ira Purkey.
  • October 42019: Lezmond Mitchell’s exe­cu­tion is stayed by the 9th Circuit Court of Appeals.
  • November 20, 2019: The District of Columbia fed­er­al dis­trict court issues a pre­lim­i­nary injunc­tion halt­ing the exe­cu­tions of Alfred Bourgeois, Dustin Lee Honken, Daniel Lewis Lee, and Wesley Ira Purkey.
  • December 2, 2019: The District of Columbia Circuit Court of Appeals denies the fed­er­al gov­ern­men­t’s request to stay the pre­lim­i­nary injunc­tion order pend­ing the gov­ern­men­t’s appeal.
  • December 5, 2019: The Southern District of Indiana fed­er­al dis­trict court stays Lee’s execution.
  • December 6, 2019:
    • The Seventh Circuit Court of Appeals vacates the Indiana dis­trict court’s stay of Lee’s execution.
    • An Arkansas fed­er­al dis­trict court stays Lee’s exe­cu­tion because of a pend­ing Supreme Court case that could affect the con­sid­er­a­tion of Lee’s inef­fec­tive assis­tance of coun­sel claim.
    • The United States Supreme Court refus­es to stay or vacate the DC dis­trict court’s pre­lim­i­nary injunc­tion order, result­ing in Bourgeois’, Honken’s, Lee’s, and Purkey’s exe­cu­tions remain­ing on hold.
  • April 7, 2020: The D.C. Circuit Court of Appeals vacates the pre­lim­i­nary injunc­tion grant­ed by the dis­trict court in the exe­cu­tion pro­to­col case.
  • June 1, 2020: The Eighth Circuit Court of Appeals vacates the Arkansas dis­trict court stay regard­ing the con­sid­er­a­tion of Lee’s inef­fec­tive assis­tance of coun­sel claim.
  • June 5, 2020: Bourgeois, Honken, Lee, and Purkey file a peti­tion for cer­tio­rari ask­ing the Supreme Court to review the D.C. Circuit’s rul­ing in the exe­cu­tion pro­to­col case.
  • June 15, 2020: The fed­er­al gov­ern­ment announces July and August exe­cu­tion dates for four death row pris­on­ers: Honken, Lee, Purkey, and Keith Dwayne Nelson.
  • July 29, 2020: The U.S. Supreme Court declines to review the D.C. Circuit’s rul­ing in the exe­cu­tion pro­to­col case.
  • July 2, 2020: The Seventh Circuit Court of Appeals grants Wesley Purkey a stay of exe­cu­tion in order for com­plete review of claims that were pend­ing before the fed­er­al government’s June 15th issuance of exe­cu­tion warrants.
  • July 13, 2020: The District of Columbia fed­er­al dis­trict court issues a pre­lim­i­nary injunc­tion halt­ing the exe­cu­tions of Honken, Lee, Purkey, and Nelson based on the pris­on­ers’ chal­lenges to the fed­er­al gov­ern­men­t’s exe­cu­tion protocol. 
  • July 14, 2020:
    • In an ear­ly morn­ing 5 – 4 deci­sion, the U.S. Supreme Court vacates the dis­trict court’s pre­lim­i­nary injunction.
    • Lee’s attor­neys alert the fed­er­al gov­ern­ment that the December 6, 2019 stay remains in place because the 8th Circuit has not issued its man­date”.
    • The fed­er­al gov­ern­ment files an emer­gency motion for the issuance of the man­date, and the Eighth Circuit grants it. 
    • The fed­er­al gov­ern­ment exe­cutes Daniel Lewis Lee, more than eight hours after his orig­i­nal death war­rant expired.
  • July 15, 2020:
    • The District of Columbia fed­er­al dis­trict court issues a fur­ther pre­lim­i­nary injunc­tion on one remain­ing aspect of the pris­on­ers’ exe­cu­tion pro­to­col chal­lenge and denies a pre­lim­i­nary injunc­tion on the rest of the remain­ing claims.
    • The District of Columbia fed­er­al dis­trict court issues a pre­lim­i­nary injunc­tion based on Purkey’s claim that he is men­tal­ly incom­pe­tent to be executed.
  • July 162020
    • The Supreme Court vacates the exe­cu­tion pro­to­col pre­lim­i­nary injunc­tion and denies stay requests filed by Purkey and by his and Honken’s reli­gious advisors.
    • In a 5 – 4 rul­ing, the U.S. Supreme Court vacates the Seventh Circuit’s stay of Wesley Purkey’s execution.
    • Purkey’s attor­neys file his com­pe­ten­cy claim in an Indiana dis­trict court and request a stay of execution.
    • After order­ing a tem­po­rary stay, the Indiana dis­trict court denies the stay motion.
    • While stay motions remain pend­ing in the Seventh Circuit, the fed­er­al gov­ern­ment exe­cutes Wesley Ira Purkey, more than eight hours after his orig­i­nal death war­rant expired.
    • The D.C. fed­er­al dis­trict court declines to issue a stay of Honken’s exe­cu­tion pend­ing the pris­on­ers’ appeal of the denial of a pre­lim­i­nary injunc­tion on the remain­ing exe­cu­tion pro­to­col claims. 
  • July 172020:
    • The D.C. Circuit declines to issue a stay of Honken’s exe­cu­tion pend­ing the pris­on­ers’ appeal of the denial of a pre­lim­i­nary injunc­tion on the remain­ing exe­cu­tion pro­to­col claims.
    • The fed­er­al gov­ern­ment exe­cutes Dustin Lee Honken.

The announcement of the resumption of federal executions was criticized by corrections officials, religious leaders, conservative commentators, former state and federal judges, prosecutors, law enforcement and corrections officials, and family members of homicide victims.

A former high-ranking federal corrections official warned that the federal government’s execution plan risks seriously traumatizing correctional workers. Allen Ault is a former chief of the Justice Department’s National Institute of Corrections who also served as corrections commissioner in Georgia, Mississippi, and Colorado, and as chairman of the Florida Department of Corrections. In a July 31, 2019 op-ed in The Washington Post, Ault said, “I know from my own firsthand experiences, supervising executions as a state director of corrections, that the damage executions inflict on correctional staff is deep and far-ranging.”

Ault’s op-ed described the mental and emotional toll that executions take on corrections officials, including those who do not directly participate in the execution. “Psychologists have described the impact of executions on correctional staff as similar to that suffered by battlefield veterans,” Ault wrote. “But in my military experience, there was one major difference: The enemy was an anonymous, armed combatant who was threatening my life. In an execution, the condemned prisoner is a known human being who is totally defenseless when brought into the death chamber. Staff members know that he has been secured safely for many years before his execution and poses no threat to them personally.” Other corrections officers are also affected, Ault said. “The trauma extends through the many correctional staff who interact every day with death row prisoners, often forming meaningful bonds over the course of many years and, in many cases, witnessing their changed mind-sets and profound remorse.” He reported that executions can cause “depression, anxiety and other mental and physical impacts” in other members of the prison community.

According to Ault, the “compressed schedule” proposed by the federal government “causes an extended disruption to normal prison operations and precludes any attempt to return to normalcy following an execution. It also prevents any meaningful review by execution team members and other officials to address problems or concerns in the execution process. That increases the risk that something could go horribly wrong in the next execution. And if a ‘routine’ execution is traumatizing for all involved, a botched one is devastating.”

A number of conservative commentators voiced strong opposition to the DOJ decision, saying it violated conservative values. Jared Olsen (pictured), a Republican member of the Wyoming House of Representatives who has sponsored legislation to abolish that state’s death penalty, noted the continuing conservative movement away from capital punishment as “more conservatives have come to realize that capital punishment conflicts irreconcilably with their principles of valuing life, fiscal responsibility and limited government.” In an op-ed in in The New York Times, Olsen questioned the administration of the federal death penalty, writing: “Punishment for crime has historically been a state prerogative. Yet many of the people on federal death row are there for crimes that have little to do with a real federal interest.” An opinion article for Fox News by Hannah Cox, the National Manager of Conservatives Concerned About the Death Penalty, described the death penalty as “a failed Big Government program” that offends conservative values, and said “[o]ur federal government is failing by embracing it.”

The U.S. Conference of Catholic Bishops criticized the administration’s decision to schedule five execution dates. In a statement on behalf of the Conference, Bishop Frank J. Dewane wrote: “In light of [the Church’s] long held and strongly maintained positions, I am deeply concerned by the announcement by the United States Justice Department that it will once again turn, after many years, to the death penalty as a form of punishment.” The statement urged federal officials to “abandon the announced plans for executions.” Cardinal Blase J. Cupich called the announcement “gravely injurious to the common good, as it effaces the God-given dignity of all human beings, even those who have committed terrible crimes.”

In November 2019, hundreds of former state and federal judges, prosecutors, law enforcement and corrections officials, and family members of homicide victims signed on to a series of letters urging the federal government to halt the scheduled federal executions. In four separate letters addressed to President Donald Trump and Attorney General William Barr, 175 family members of murder victims, 65 former state and federal judges, 59 current and former state and federal prosecutors and law enforcement officials, and 26 former correctional professionals offered diverse perspectives on why the scheduled executions should not take place.

Family members of murder victims were the largest group to urge the administration to call off the executions. When Attorney General Barr announced that the federal government would resume executions, he attempted to justify that decision as being a service to victims’ families. Barr said at the time, “we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

The 175 victims’ family members disagreed. Calling for an end to capital punishment, they wrote: “The death penalty does not prevent violence. It does not solve crime. It does not provide services for families like ours. It does not help solve the over 250,000 homicide cold cases in the United States. It exacerbates the trauma of losing a loved one and creates yet another grieving family. It also wastes many millions of dollars that could be better invested in programs that actually reduce crime and violence and that address the needs of families like ours.”

The other groups did not advocate death-penalty abolition, but criticized systemic flaws in the federal death penalty as currently administered and said the executions should be halted. The letter from federal and state judges argued that “there are too many problems with the federal death penalty system, and too many unanswered questions about the government’s newly announced execution procedure, to allow executions to proceed.” The judges wrote that, from their experience on the bench, “[r]acial bias, geographic disparities, and deficient counsel played outsized roles in the decisions to seek and impose the death penalty.”

The letter from law enforcement officials and prosecutors—signed by police chiefs, former state attorneys general, former federal prosecutors, and current and former district attorneys—said “[t]he federal death penalty system is marked by many of the same troubling flaws found in the state death penalty systems,” listing the same concerns as the judges, as well as the “alarming frequency” of wrongful convictions.

The corrections officials spoke directly to the effect of executions on prison personnel who must carry them out. “The psychological toll of carrying out a death sentence is well-documented,” they wrote. “Those of us who have participated in executions have experienced the trauma first-hand, while others of us have seen the toll it has taken on colleagues. We believe the federal government is compounding the risk to corrections staff by scheduling these executions so close together.” Their letter emphasized the risk presented by the new protocol, the rushed timeline of executions, and staffing shortages in the federal Bureau of Prisons. “Our colleagues at the Bureau are professionals, but it is incumbent on leaders to avoid putting public servants in positions where they face a real risk of harm or error. We hope you will reconsider the scheduled executions to ensure the safety and wellbeing of federal corrections officers.”

The victims’ family letter included individuals in high-profile cases—such as Bud Welch, whose daughter, Julie, was killed in the Oklahoma City bombing, and several family members of people killed in the 9/11 terrorist attacks—as well as numerous family members of victims in cases in which prosecutors did not seek the death penalty or in which the murder remains unsolved. The letter emphasizes that “[t]he current system divides murder victims’ families by cherry-picking cases to receive the disproportionate attention and resources of a capital trial.” This, it says, “sends the hurtful message that some murders are worse than others and some victims matter more than others, even while most of us never receive the services we need in the wake of violence.”

Both the judges and the prosecutors urged the Attorney General to undertake a systemic review of the federal death penalty to redress systemic arbitrariness in its implementation. The judges wrote, “just as only 2% of America’s counties produce a majority of state death sentences, we see the same geographic concentration in the federal system. Only three states – Texas, Missouri, and Virginia – account for nearly half of all current federal death sentences. And as America grapples with a reckoning on racial injustice, we see that people of color make up 55% of those on federal death row.” They called the racial disparity “especially stark in the states with the most federal death sentences.”

In addition to its racial disparities, the judges wrote that, “[o]verwhelmingly,” those sentenced to death in the federal system “are poor, suffer from mental illness, and/or were subjected to relentless trauma in their developmental years. In other words, the federal death penalty is not imposed on ‘the worst of the worst.’ Instead, just as in the states, it is applied in a biased manner against the most vulnerable populations.”

The prosecutors raised similar concerns and also questioned the decision to divert limited federal law enforcement resources to costly capital prosecutions and appeals. “Death penalty cases are extremely expensive,” they wrote, “requiring many more human and financial resources than cases where the death penalty is not pursued. There are reasonable questions about whether these resources could be better used on other public safety priorities, such as ensuring that law enforcement officers throughout the country have access to needed equipment and technology, and expanding units devoted to resolving cold cases.”

They prosecutors said they “are deeply concerned that the federal government plans to proceed with executions despite serious questions about the fairness and reliability of the system that condemned” the prisoners slated to die. They wrote, “[w]e urge you to prevent this injustice by withdrawing the scheduled execution dates, and ordering that no federal executions occur until a comprehensive review of the system can be completed.”

Execution Protocol Litigation Halts All Federal Executions Up

Federal death row prisoners have been challenging the Department of Justice’s execution protocol for more than a decade, through several changes in the federal lethal injection protocol. During this time, the death row prisoners who were part of the main lethal injection lawsuit (Roane v. Gonzales) successfully sought a preliminary injunction preventing their execution. The litigation stalled while the federal government studied making changes in the execution protocol due to drug unavailability.

On July 25, 2019, the same day that Attorney General Barr announced the resumption of federal executions, the federal government filed a revised protocol in the pending cases. The government set execution dates for five prisoners who were not covered by the preliminary injunction, Lezmond Mitchell, Alfred Bourgeois, Dustin Lee Honken, Daniel Lewis Lee, and Wesley Ira Purkey. The decision to execute prisoners not covered by the existing preliminary injunction raised questions about whether the government was trying to fast track executions to evade judicial review of the new protocol. Bourgeois, Honken, Lee, and Purkey requested a preliminary injunction to halt their executions based on deficiencies with the substance of and the manner of adopting the revised execution protocol.

Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia issued a preliminary injunction on November 20 that halted the federal executions pending completion of court challenges to the legality of the federal government’s execution process. The ruling found that the government’s proposed execution protocol conflicted with the provisions of the federal death penalty statute Congress passed in 1994 and that the prisoners were likely to prevail on their claim that the DOJ had “exceeded its statutory authority” in adopting the protocol.

The DOJ then filed an emergency application in the United States Court of Appeals for the District of Columbia Circuit asking the appeals court to vacate or stay enforcement of the injunction. In an unsigned order issued on December 2, the court unanimously declined to disturb the injunction. The one-page order did not address the legality of the government’s execution protocol or whether the District Court had properly issued the injunction, but held that the DOJ and the BOP had “not satisfied the stringent requirements” to vacate the injunction — and permit executions — before the appeals court could rule on the merits of the appeal.

Within hours of that ruling, the DOJ filed an application in the U.S. Supreme Court asking it to lift the injunction. The DOJ application had incorrectly asserted that the Circuit Court had upheld the injunction, the merits of which was still pending on appeal before the circuit. The Justices unanimously declined to vacate the injunction. However, they directed the federal appeals court to expeditiously address the government’s appeal of the injunction, writing: “We expect that the Court of Appeals will render its decision with appropriate dispatch.”

2020: The Federal Government Announces New Execution Dates in the Midst of Ongoing Litigation Up

In April 2020, a panel of the U.S. Court of Appeals for the District of Columbia Circuit issued a fractured ruling lifting the injunction that had blocked the federal government from carrying out executions. The court’s per curiam opinion stated “Each member of the panel takes a different view of what the FDPA [Federal Death Penalty Act] requires. Because two of us believe that the district court misconstrued the FDPA, we vacate the preliminary injunction.” The panel left the district court to decide the prisoners’ challenges to the proposed execution drugs brought under the Food, Drug, and Cosmetic Act and the Controlled Substances Act, as well as claims related to the constitutionality of the protocol and a claim that the protocol is arbitrary and capricious under the federal Administrative Procedures Act.

The prisoners unsuccessfully sought review by the full D.C. Circuit and then filed a petition for writ of certiorari to the U.S. Supreme Court. While the petition was pending, U.S. Attorney General William Barr on June 15, 2020 set execution dates for four federal death-row prisoners, including three who were involved in the pending case. The warrants scheduled three executions over a five-day period in July and a fourth execution in late August. The government set the executions of Daniel Lewis Lee (July 13), Wesley Ira Purkey (July 15), Dustin Lee Honken (July 17), and Keith Dwayne Nelson (August 28).

The DOJ’s news release described the D.C. Circuit’s decision as having “clear[ed] the way for the federal government to resume capital punishment after a nearly two-decade hiatus.” The release omitted any reference to the continuing litigation over the legality of the prior death warrants. It also asserted that the four prisoners “have received full and fair proceedings under our Constitution and laws. We owe it to the victims of these horrific crimes, and to the families left behind, to carry forward the sentence imposed by our justice system.”

A group of 15 administrative law experts filed an amicus curiae brief in support of the death-row prisoners’ request that Supreme Court overturn the D.C. Circuit’s decision. According to the amicus brief, “This case presents a trifecta of classic administrative-law problems: The Bureau of Prisons (BOP) (1) misinterpreted a statute, (2) after having failed to engage in required notice-and-comment processes, and (3) the court below upheld BOP’s action on grounds not provided by the agency itself.” Despite this support, the Supreme Court denied certiorari review on June 29, 2020 over the dissent of Justices Ginsburg and Sotomayor.

The Supreme Court’s denial of certiorari did not end the execution protocol litigation as several claims remained before the district court. In addition, litigation continued for the prisoners under warrant on individual claims in federal district and circuit courts across the country.

Executions During a Global Pandemic Up

In March 2020, the World Health Organization declared the novel coronavirus a global pandemic. In response to the risk of an exponential rise in infections, serious illnesses, and death, much of the United States operated for months under shut-down orders that required residents to shelter in place and forego non-essential travel and minimize face-to-face interactions with those outside their household. The pandemic had a serious effect on the federal death-row prisoners facing execution.

The Federal Bureau of Prisons’ emergency rules stopped all visits to prisons in order to minimize the risks to visitors and prisoners. This made it impossible for attorneys to visit the death-row prisoners in the lead-up to the executions. The death-row prisoners filed motions to move their executions dates due to the global pandemic, but these motions were denied by the federal courts. Other potential participants in the execution were forced to make difficult decisions due to the federal government’s insistence on going forward with executions during the pandemic. As a result, several lawsuits were filed to postpone the executions until the pandemic abates.

Family members of the victims in Lee’s case filed suit to request 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 two of the victims, is 81 years old and was 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.”

Religious advisors for Wesley Purkey and Dustin Honken sought stays of execution because of the danger of attending an execution during the pandemic. Purkey’s spiritual advisor, Rev. Dale Hartkemeyer, a 68-year-old Buddhist priest, has visited Purkey monthly since January 2009 as his spiritual guide. A suit filed on Hartkemeyer’s behalf by the ACLU says that his age and a lung condition place him at high risk from COVID-19. “I’m being asked to make an impossible decision — violate my religious beliefs or risk my health and life by attending an execution that could become a ‘super-spreader’ event for COVID-19,” he wrote in a blog post.

Hartkemeyer wrote: “It’s vital that I be there, as Wes’s priest, to ensure this peaceful transition from life to death during his most dire moment of distress — his ultimate crisis — as he sits at the threshold of death. I will chant from behind a plexiglass barrier to ensure his peace of mind while passing and, through my physical presence, serve as a spiritual reminder to Wes of all the religious lessons I have taught him as he passes on from this life. This is my sacred duty.” Hartkemeyer’s suit was joined by Father Mark O’Keefe, a Catholic priest who is serving as spiritual advisor to Dustin Honken.

Concerns about the risk of virus transmission 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. Despite this fact, all legal challenges to the execution based on the pandemic were denied.

The Week of July 13, 2020: Chaos Surrounds the First Federal Executions in Seventeen Years Up

The Execution of Daniel Lewis Lee

(Executed July 14, 2020)

Daniel Lewis Lee

Daniel Lewis Lee and co-defendant Chevie Kehoe were convicted in 1999 of killing Nancy Mueller, her husband William Mueller, and her 8-year-old daughter Sarah Powell. Lee’s bid for executive clemency was supported by Mueller’s family, the prosecutor, and the judge who tried him in an Arkansas federal court. They all believed that executing Lee would be a miscarriage of justice given the life sentence imposed on his much more culpable co-defendant. Judge G. Thomas Eisele described Kehoe as the “ringleader,” and trial testimony showed that Kehoe killed Sarah Powell after Lee refused, saying he would not kill a child.

Lee had been scheduled for execution on July 13, with the authorization to put him to death expiring at midnight. Early in the day, a federal district court in Washington, D.C. had issued a preliminary injunction barring all four scheduled federal executions on the grounds that the prisoners were likely to prevail on their challenge to the constitutionality of the execution protocol. Federal prosecutors filed simultaneous motions in the U.S. Court of Appeals for the District of Columbia Circuit and the United States Supreme Court seeking to vacate the injunction. As the midnight deadline approached, the appeals court denied the motion, and set an expedited briefing schedule to consider the merits of the district court’s ruling. That schedule, however, extended beyond July 17, effectively halting the first three scheduled executions.

Hours later, around 2:30 am on July 14, the U.S. Supreme Court vacated the district court injunction by a 5-4 vote. In an unsigned opinion, the five conservative justices wrote that last-minute stay applications were disfavored and that the prisoners had not met the “exceedingly high bar” of establishing that they could show that executions using pentobarbital constitute cruel and unusual punishment.

Justice Sotomayor, joined by Justices Ginsburg and Kagan, dissented from the decision, writing that “hastily” denying the prisoners’ challenge “accepts the Government’s artificial claim of urgency to truncate ordinary procedures of judicial review” and “sets a dangerous precedent.” She continued, “the grant of the Government’s emergency application inflicts the most irreparable of harms without the deliberation such an action warrants.” Justice Stephen Breyer, joined by Justice Ginsburg, renewed his call for an examination of the constitutionality of the death penalty. He wrote, “the resumption of federal executions promises to provide examples that illustrate the difficulties of administering the death penalty consistent with the Constitution. As I have previously written, the solution may be for this Court to directly examine the question whether the death penalty violates the Constitution.”

Immediately after the Court’s decision was issued, the Department of Justice (DOJ) began calling execution witnesses back to the federal prison in Terre Haute, Indiana, where the execution was set to take place. Witnesses were told that the execution would take place at 4 am. Lee’s attorneys responded with a letter informing the Bureau of Prisons that a mandate from the District Court of the Eastern District of Arkansas, lifting an earlier stay in the case, had not yet issued, meaning that the execution was still legally stayed. At 7:36 am Eastern time, the U.S. Court of Appeals for the Eighth Circuit, in response to an emergency motion filed by the DOJ, granted an expedited mandate allowing the execution to proceed. Thirty-one minutes later, Daniel Lee was declared dead.

The Bureau of Prisons released a one-page document it said had provided Lee with the required legal notice of his new execution date, though he was provided no opportunity to speak with counsel or contest the BOP’s adherence to required protocols before he was executed. “The federal government just executed a prisoner in violation of the law,” DPIC Executive Director Robert Dunham said. “And if their actions could be construed as complying with federal regulations, the regulations were unconstitutional.”

According to a statement by Lee’s attorney, Ruth Friedman, Lee was executed with multiple motions in his case still pending, and without notice to his attorneys. Friedman wrote, “It is shameful that the government saw fit to carry out this execution during a pandemic. It is shameful that the government saw fit to carry out this execution when counsel for Danny Lee could not be present with him, and when the judges in his case and even the family of his victims urged against it. And it is beyond shameful that the government, in the end, carried out this execution in haste, in the middle of the night, while the country was sleeping. We hope that upon awakening, the country will be as outraged as we are.”

The Execution of Wesley Ira Purkey

(Executed July 16, 2020)

Wesley Ira Purkey

Wesley Ira Purkey was executed at the United States Penitentiary Terre Haute and pronounced dead at 8:19 a.m. on July 16, 2020, more than 15 hours after the time the Federal Bureau of Prisons had set for a scheduled July 15 execution. Three Supreme Court rulings issued at about 2:45 a.m. removed potential legal impediments for his execution, but the date for his scheduled execution had passed. Interpreting regulatory provisions that required the Director of the Bureau of Prisons to provide a prisoner notice of a new execution date as permitting an immediate execution, prison officials reportedly read Purkey a one-page letter informing him he would be executed on July 16.

Purkey’s execution followed a similar trajectory to the federal government’s execution of Daniel Lewis Lee’s 48 hours earlier. As in Lee’s case, the Supreme Court issued post-2:00 a.m. rulings vacating preliminary injunctions issued by a Washington, D.C. federal district court and nullifying briefing schedules set by a federal appeals court panel in Washington that expedited consideration of the government’s challenge to the injunction. And in both cases, the government left no opportunity to challenge the notice it provided of an immediate morning execution after the original death warrant expired.

“Wes Purkey’s execution should shock the conscience of anyone who cares about justice and the rule of law,” his lawyer, Rebecca Woodman, said in a statement. “The government used every weapon in its arsenal to prevent any court from deciding the merits of his incompetency claim, even as evidence in its own possession showed Mr. Purkey’s mental capacity was profoundly impaired. And by barreling ahead to execute during the COVID-19 pandemic, the government recklessly placed hundreds of people at serious and unnecessary risk.”

A Divided Supreme Court Blocks Legal Review of Issues in Purkey’s Case

Lower courts had issued three separate orders halting Purkey’s execution to permit review of issues involving the legality of the federal execution process, his mental competency, and whether there was a procedural vehicle available for courts to consider his claim of ineffective penalty-phase representation. A divided Supreme Court vacated all three and rejected two other petitions to postpone the execution.

On July 2, a panel of the U.S. Court of Appeals for the Seventh Circuit issued a stay of execution to permit Purkey to seek review of a procedural ruling that had blocked the court from considering issues related to ineffective representation in the penalty phase of his trial and defects in his sentencing jury’s consideration of mitigating evidence. The panel had denied Purkey’s claim on procedural grounds but decided that the execution schedule announced by the federal government the day before oral argument in Purkey’s case should not be permitted to interfere with the Court’s ability to fully review Purkey’s claims, including a potential motion for rehearing. Early in the evening of July 15, a divided United States Supreme Court disagreed, voting 5-4 without opinion to vacate the stay. Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor dissented.

That ruling left the Court with four unresolved issues to decide:

  • Federal prosecutors’ request to vacate a preliminary injunction issued by the federal district court in Washington, D.C., on the prisoners’ remaining challenges to the federal execution protocol;
  • The prosecutors’ request to vacate the federal district court’s preliminary injunction on Purkey’s claim of incompetency to be executed;
  • An application by Purkey’s 68-year-old spiritual advisor with an underlying health condition to delay the execution so that he could minister to Purkey at the execution without risking his own life and health; and
  • Purkey’s petition asking the Court to review the Seventh Circuit’s procedural rulings on his ineffectiveness claim.

In a series of 2:45 a.m. rulings without comment on July 16, the Court granted the prosecutors’ requests to vacate the injunctions and denied the defense-associated requests to stay the execution. Four justices strongly dissented.

Justice Sotomayor authored the principal dissent, joined by Justices Breyer, Ginsburg, and Kagan. Sotomayor sharply criticized the Court’s “decision to shortcut judicial review and permit the execution of an individual who may well be incompetent.” She rejected the prosecutors’ assertion that Purkey should be executed because he labeled his claim a civil rights claim related to his execution instead of a habeas corpus claim related to his death sentence and filed in the court considering the constitutionality of the federal execution process instead of the court in which he had been tried. “It is … undisputed that there is a District Court in which Purkey may properly pursue his [competency] claim and his request for a competency hearing,” she wrote. Given the evidence of Purkey’s Alzheimer’s diagnosis, and his “history of delusions, hallucinations, and paranoia,” Justice Sotomayor concluded that “the Government has not come close to showing that the District Court erred in finding Purkey likely to succeed on the merits of his [claims].”

Justice Breyer authored a second dissent, joined by Justice Ginsburg, reiterating his concerns with the constitutionality of capital punishment. Purkey’s and Lee’s cases, he wrote, “have come before us with the defendants pointing to what I believe are serious legal defects of a kind that have long plagued the administration of the death penalty in the United States.” Lee’s case, Breyer said, illustrates the arbitrariness, inevitable delay, procedural unfairness, and uncertain reliability of the death penalty process, as “Lee was sentenced to death and his codefendant to life even though the two men committed the same crime.” Purkey, he wrote, “is now 68 years old, frail, and suffering from Alzheimer’s disease and other psychiatric conditions” after 16 years of incarceration of death row, undermining any possible deterrent or retributive value to his execution.

“A modern system of criminal justice,” Breyer wrote, “must be reasonably accurate, fair, humane, and timely. Our recent experience with the federal government’s resumption of executions adds to the mounting body of evidence that the death penalty cannot be reconciled with those values. I remain convinced of the importance of reconsidering the constitutionality of the death penalty itself.”

Purkey is Executed While Proceedings Are Pending in the Seventh Circuit Court of Appeals

After the Supreme Court’s decisions, Purkey refiled his competency claim in Indiana federal district court. The Indiana district court temporarily stayed the execution to consider Purkey’s filings. With the district court action pending, Purkey filed an emergency application in the Seventh Circuit for a stay of execution at 3:35 a.m. Central (4:35 a.m. Eastern), according to time-stamped entries in the appeals docket. As Purkey’s lawyers were preparing a pleading notifying the Circuit Court that the district court had denied their petition, the Bureau of Prisons moved forward with the execution.

At 7:53 a.m., prison officials allowed media witnesses to view the execution chamber. IV’s had already been inserted in Purkey’s arms. At 7:58 a.m. Eastern, defense counsel filed a Motion for Stay of the July 16, 2020 Execution While Pending Appeal with the Seventh Circuit. By then, a chaplain in “full PPE” was praying inside the chamber. Purkey was pronounced dead at 8:19 am. Two hours later, the Circuit Court entered its final order: “Appellant’s sentence has been carried out rendering the motions and the appeal moot. Accordingly, all pending motions are DENIED and this appeal is DISMISSED as moot.”

“We should expect more of our federal government than the rushed execution of a damaged and delusional old man,” Woodman said. “As the district court in Washington, D.C. quoted …, ‘the public interest has never been and could never be served by rushing to judgment at the expense of a condemned inmate’s constitutional rights.’ What happened today is truly abhorrent.”

The Execution of Dustin Lee Honken

(Executed July 17, 2020)

The United States government carried out its third execution in four days on July 17, 2020, executing Dustin Honken. The week’s executions doubled the number of prisoners the government has put to death since Congress reauthorized the federal death penalty in 1988.

With overnight U.S. Supreme Court rulings vacating injunctions that would have halted the July 14 and 16 executions of Daniel Lee and Wesley Purkey, few legal avenues had remained for Honken to challenge his execution.

Honken had been convicted of murdering five people — two who were witnesses against him on federal methamphetamine charges, and the girlfriend of one of the witnesses and her two daughters. He reportedly had become a devout Catholic following his incarceration, drawing the support of church officials, including a cardinal and several Iowa bishops.

After the execution, Shawn Nolan, one of the federal defenders on Honken’s defense team issued a statement: “Dustin Honken was redeemed. He recognized and repented for the crimes he had committed, and spent his time in prison atoning for them. … There was no reason for the government to kill him, in haste or at all. In any case, they failed. The Dustin Honken they wanted to kill is long gone. The man they killed today was a human being, who could have spent the rest of his days helping others and further redeeming himself. May he rest in peace.”