Federal Government Ends Death Penalty Hiatus With Rushed Early-Morning Execution of Daniel Lee

The U.S. fed­er­al gov­ern­ment end­ed its 17-year hia­tus between exe­cu­tions on July 14, 2020, putting Daniel Lewis Lee (pic­tured) to death moments after overnight rul­ings by the U.S. Supreme Court and the U.S. Court of Appeals for the Eighth Circuit vacat­ed pri­or court orders that had placed the exe­cu­tion on hold. Two more exe­cu­tions are sched­uled this week, with a fourth set for August. 

Although Lee’s death war­rant expired at mid­night on July 13, the fed­er­al Bureau of Prisons (BOP) attempt­ed to start his exe­cu­tion at 4:00 a.m. on the 14^th, after the U.S. Supreme Court had vacat­ed a pre­lim­i­nary injunc­tion entered by a fed­er­al dis­trict court in Washington, D.C. Notified by defense coun­sel that a stay of exe­cu­tion was still in effect from an Arkansas fed­er­al court rul­ing in December 2019, the BOP left Lee strapped to the exe­cu­tion gur­ney for four hours while fed­er­al pros­e­cu­tors filed motions in the Eighth Circuit to ter­mi­nate the stay. The appeals court lift­ed the stay at 6:36 a.m. Central time, 7:36 a.m. in the exe­cu­tion cham­ber in Terre Haute, Indiana. Federal law requires the Bureau of Prisons to set a new exe­cu­tion date if a stay of exe­cu­tion is lift­ed after a pri­or death war­rant expires. But with­out noti­fy­ing defense coun­sel, the BOP com­menced the exe­cu­tion, inject­ing Lee with a fatal dose of the drug pen­to­bar­bi­tal. He was pro­nounced dead at 8:07 a.m. Eastern. 

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.” 

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 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.