Federal Government Carries Out Third Execution in One Week, As Challenges to Execution Protocol Fail

The United States gov­ern­ment car­ried out its third exe­cu­tion in four days on July 17, 2020, exe­cut­ing Dustin Honken (pic­tured). 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.”

Three Federal Court Injunctions Vacated

In November 2019, the U.S. District Court for the District of Columbia had enjoined the exe­cu­tions of four fed­er­al death-row pris­on­ers, find­ing that they had ​“demon­strat­ed a like­li­hood of suc­cess on the mer­its of their claims that the 2019 [Federal Execution] Protocol vio­lates the Federal Death Penalty Act.” The order halt­ed the administration’s efforts to restart fed­er­al exe­cu­tions in 2019, but was over­turned by the U.S. Court of Appeals for the District of Columbia Circuit on April 7, 2020 in a frac­tured 2 – 1 deci­sion that failed to reach a major­i­ty on what the Federal Death Penalty Act actu­al­ly required. That rul­ing returned the case to the dis­trict court to resolve out­stand­ing issues that it had not addressed in its initial decision.

On June 1, the pris­on­ers filed an amend­ed com­plaint in the dis­trict court fur­ther chal­leng­ing the exe­cu­tion pro­to­col. They also filed a peti­tion for cer­tio­rari ask­ing the Supreme Court to review the cir­cuit court’s rul­ing. That peti­tion was pend­ing when, on June 15, the Department of Justice set four new exe­cu­tion dates begin­ning less than 30 days lat­er and con­clud­ing with the sched­uled exe­cu­tion of Keith Nelson on August 28. On June 19, the four pris­on­ers fac­ing immi­nent exe­cu­tion filed a joint motion in the fed­er­al dis­trict court for a pre­lim­i­nary injunc­tion on their unre­solved exe­cu­tion-pro­to­col claims. They also sought expe­dit­ed dis­cov­ery to devel­op the facts with­in the con­strict­ed time­frame cre­at­ed by the execution schedule.

After expe­dit­ed brief­ing, the U.S. Supreme Court on June 29 declined to hear the prisoner’s chal­lenge. Lee’s July 13 exe­cu­tion date approached before the court had an oppor­tu­ni­ty to con­duct a hear­ing on the issues raised by the pris­on­ers. Based on affi­davits sub­mit­ted by the par­ties, the dis­trict court found that “[t]he sci­en­tif­ic evi­dence … over­whelm­ing­ly indi­cates that the 2019 Protocol is very like­ly to cause Plaintiffs extreme pain and need­less suf­fer­ing dur­ing their exe­cu­tions,” and deter­mined that, “[w]hile it is dif­fi­cult to weigh com­pet­ing sci­en­tif­ic evi­dence at this rel­a­tive­ly ear­ly stage, the fac­tu­al record indi­cates that [the pris­on­ers] are like­ly to suc­ceed on the mer­its” of their con­sti­tu­tion­al chal­lenge to the use of pen­to­bar­bi­tal in federal executions. 

The dis­trict court addressed the ​“last-minute nature” of its rul­ing, call­ing it ​“unfor­tu­nate, but no fault of the [pris­on­ers]. … 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. The Government is enti­tled to choose dates, but the court can­not take short cuts in its oblig­a­tions in order to accom­mo­date those dates.”

Federal pros­e­cu­tors filed motions in the District of Columbia fed­er­al court of appeals and in the U.S. Supreme Court seek­ing to vacate the injunc­tion. The fed­er­al appeals court declined to lift the injunc­tion and set an expe­dit­ed brief­ing sched­ule that would have halt­ed the first three sched­uled exe­cu­tions. But in a 2:00 a.m. 5 – 4 rul­ing on July 14, the U.S. Supreme Court vacat­ed the injunc­tion, allow­ing Lee’s exe­cu­tion to proceed.

The three remain­ing pris­on­ers asked the dis­trict court to rule on the oth­er issues raised in their chal­lenge to the pro­to­col, and ear­ly on the morn­ing of July 15, the dis­trict court issued a third pre­lim­i­nary injunc­tion. This time, the court ruled that the pris­on­ers had failed to make a thresh­old show­ing that the exe­cu­tion pro­to­col was arbi­trary and capri­cious and vio­lat­ed their right to coun­sel and to access to the courts, but found that the pro­to­col like­ly vio­lat­ed fed­er­al Food, Drug, and Cosmetics Act pro­hi­bi­tions against dis­pens­ing con­trolled sub­stances with­out a valid prescription. 

Once again, the fed­er­al appeals court declined to vacate the injunc­tion, and again it set an expe­dit­ed brief­ing sched­ule that would pre­vent the exe­cu­tions of Purkey and Honken. And once again, this time in a 2:45 a.m. deci­sion on July 16, the U.S. Supreme Court inter­vened, vacat­ing the injunc­tion and paving the way for Purkey’s execution.

Later in the day, the dis­trict court denied Honken a stay to per­mit him to appeal the issues the court had reject­ed, and the D.C. appeals court also declined to grant a stay.

Honken would be the 1,522^nd per­son put to death in the United States since exe­cu­tions resumed in the 1970s, and the first since 1963 to be put to death for a crime com­mit­ted in Iowa. He would be the tenth per­son exe­cut­ed in the U.S. in 2020.