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.