One Year Later, Execution Spree Lays Bare Federal Death Penalty’s Systemic Failures

At 3:00 a.m. Central time on July 14, 2020, after his notice of exe­cu­tion had expired, the Federal Bureau of Prisons (BOP) strapped Daniel Lewis Lee to an exe­cu­tion gur­ney in the United States Penitentiary in Terre Haute, Indiana. With the exe­cu­tion cham­ber cur­tains closed, cor­rec­tion­al offi­cials left him there for four hours while fed­er­al pros­e­cu­tors filed plead­ings in a fed­er­al appeals court to lift a stay of exe­cu­tion they had for­got­ten was still in effect. When the stay was lift­ed at 6:36 a.m., with­out noti­fy­ing Lee’s coun­sel, the BOP com­menced the exe­cu­tion, inject­ing him with a fatal dose of the drug pen­to­bar­bi­tal. He was pro­nounced dead at 7:07 a.m. Central time.

When Lee’s lawyer, Ruth Friedman, learned he had been exe­cut­ed, she released a state­ment to the media. ​“It is shame­ful that the gov­ern­ment saw fit to car­ry out this exe­cu­tion dur­ing a pan­dem­ic,” she wrote. ​“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.”

July 14, 2021 marks the one year anniver­sary of the resump­tion of fed­er­al exe­cu­tions after a 17-year hia­tus. Lee’s exe­cu­tion was the first of 13 fed­er­al civil­ian exe­cu­tions over the course of the next six months and two days, in a U.S. fed­er­al exe­cu­tion spree with­out par­al­lel in the 20^th or 21^st cen­turies. The 10 fed­er­al exe­cu­tions in 2020 were the most by the fed­er­al gov­ern­ment in any cal­en­dar year since 1896, dur­ing the sec­ond pres­i­den­cy of Grover Cleveland. And the six fed­er­al exe­cu­tions under­tak­en between Donald Trump’s elec­toral defeat on November 3, 2020 and the inau­gu­ra­tion of President Joe Biden — who had pledged to work to end the fed­er­al death penal­ty — on January 20, 2021 were the most tran­si­tion-peri­od exe­cu­tions in the 232-year his­to­ry of the American Presidency.

The exe­cu­tion spree was out of step not mere­ly with his­tor­i­cal pres­i­den­tial prac­tices, but with what was hap­pen­ing in the states at the same time. All 13 fed­er­al exe­cu­tions took place dur­ing the longest peri­od in 40 years with­out any state car­ry­ing out any exe­cu­tion. And the unprece­dent­ed spree exposed numer­ous flaws in the fed­er­al government’s use of cap­i­tal pun­ish­ment and the U.S. judiciary’s inabil­i­ty or unwill­ing­ness to enforce legal and con­sti­tu­tion­al safe­guards in capital cases.

The sheer num­ber of exe­cu­tions would have marked the Trump admin­is­tra­tion as an out­lier, both in his­tor­i­cal con­text and in the con­tem­po­rary prac­tices of the states. But the politi­ciza­tion of cap­i­tal pun­ish­ment and the numer­ous seri­ous prob­lems pre­sent­ed by the indi­vid­ual cas­es select­ed for exe­cu­tion made the exe­cu­tion spree even more strik­ing­ly aber­rant. Critics charged that pur­su­ing these exe­cu­tions amidst the worst pan­dem­ic in more than cen­tu­ry exhib­it­ed a con­temp­tu­ous dis­re­gard for pub­lic health, and the exe­cu­tions were super­spread­er events that sparked an out­break of COVID-19 in the Terre Haute com­mu­ni­ty, its fed­er­al prison, on fed­er­al death row, and among prison per­son­nel, lawyers, reporters, and reli­gious advi­sors involved in the executions.

Despite ongo­ing lit­i­ga­tion chal­leng­ing the fed­er­al government’s exe­cu­tion pro­to­col, the Department of Justice announced four exe­cu­tion dates on June 15, 2020. That lit­i­ga­tion con­tin­ued until the ear­ly morn­ing hours of July 14, cul­mi­nat­ing in a 2:30 am deci­sion by the U.S. Supreme Court to vacate a low­er court’s injunc­tion and allow exe­cu­tions to pro­ceed. Though Lee’s exe­cu­tion war­rant had expired at mid­night, prison offi­cials imme­di­ate­ly called exe­cu­tion wit­ness­es back to the prison, telling them Daniel Lewis Lee’s exe­cu­tion would take place at 4 am. Lee’s attor­neys informed the prison that a sep­a­rate stay had not yet been lift­ed, but at 6:36 a.m. Central time, a fed­er­al appeals court grant­ed an emer­gency motion from the DOJ allow­ing the exe­cu­tion to pro­ceed. 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. Two days lat­er, Wesley Purkey​’s exe­cu­tion fol­lowed a sim­i­lar tra­jec­to­ry, with the Supreme Court once again issu­ing a rul­ing in the mid­dle of the night, vacat­ing a low­er court’s injunc­tion against the exe­cu­tion. It was fol­lowed by the exe­cu­tion of Dustin Lee Honken one day later.

These three exe­cu­tions, the first con­duct­ed by the fed­er­al gov­ern­ment since March 18, 2003, set the tone for the ten that fol­lowed. Despite fed­er­al court rul­ings that por­tions of the fed­er­al exe­cu­tion pro­to­col were ille­gal, the U.S. Supreme Court swept aside every legal obsta­cle to the exe­cu­tions. Individual pris­on­ers pre­sent­ed a mul­ti­tude of legal issues includ­ing anti-Native American jury bias, men­tal com­pe­ten­cy, intel­lec­tu­al dis­abil­i­ty, youth, and dis­pro­por­tion­ate sen­tences imposed upon co-defen­dants of vary­ing cul­pa­bil­i­ty. The Supreme Court did not per­mit a hear­ing on any of those issues. The exe­cu­tion spree con­clud­ed with the post-mid­night January 16, 2021 exe­cu­tion of Dustin John Higgs, just four days before President Joe Biden took office. 

The exe­cu­tion spree rein­forced con­cerns about pol­i­tics and racial bias in the admin­is­tra­tion of the death penal­ty. Five of the sev­en pris­on­ers exe­cut­ed before the elec­tion were white, although two thirds of the pris­on­ers on fed­er­al death row were defen­dants of col­or. None of the vic­tims in the pre-elec­tion cas­es were Black. Five of the six pris­on­ers exe­cut­ed after the elec­tion were Black. Only African Americans were exe­cut­ed for interracial crimes. 

The exe­cu­tion spree also devi­at­ed from numer­ous mod­ern American death-penal­ty norms and prac­tices. It included:

• The first exe­cu­tion of a woman by the fed­er­al gov­ern­ment in 67 years;
• The exe­cu­tion of two pris­on­ers accused of mur­ders com­mit­ted in their teens, the two youngest offend­ers exe­cut­ed by the fed­er­al gov­ern­ment in 68 years;
• The first time in U.S. his­to­ry the fed­er­al gov­ern­ment exe­cut­ed a Native American for an offense com­mit­ted against fel­low tribe mem­bers on tribal lands;
• The most fed­er­al civil­ian exe­cu­tions in a sin­gle year since 1896, at a time states were car­ry­ing out the fewest exe­cu­tions in 37 years;
• The most exe­cu­tions dur­ing a pres­i­den­tial tran­si­tion peri­od in the his­to­ry of the United States;
• Scheduling exe­cu­tions dur­ing the mid­dle of the worst pan­dem­ic in more than a cen­tu­ry and flout­ing pub­lic health safe­guards as they were being carried out;
• Executions car­ried out while appeals remained pend­ing or despite court rul­ings that the exe­cu­tion pro­to­col and process were unlaw­ful or unconstitutional;
• Executions of two intel­lec­tu­al­ly dis­abled pris­on­ers, despite no judi­cial con­sid­er­a­tion of their cas­es under clin­i­cal­ly appro­pri­ate stan­dards for assess­ing the disability;
• Executions of two men­tal­ly ill pris­on­ers with­out any judi­cial review of their com­pe­ten­cy to be executed;
• Post-mid­night exe­cu­tions of four pris­on­ers after their exe­cu­tion dates had passed, pur­suant to new exe­cu­tion notices of ques­tion­able legal and constitutional validity;
• Leaving one pris­on­er strapped to the gur­ney for four hours while fed­er­al pros­e­cu­tors filed plead­ings to vacate his stay of execution;
• Executing two pris­on­ers who had contracted COVID-19.

On July 1, 2021, just shy of the one-year anniver­sary of the start of the exe­cu­tions, the Biden admin­is­tra­tion announced a pause on fed­er­al exe­cu­tions to review the Trump administration’s death-penal­ty reg­u­la­tions. While advo­cates wel­comed the mora­to­ri­um as a nec­es­sary step, they urged Biden to uphold his cam­paign pledge to work for the abo­li­tion of the fed­er­al death penal­ty, push­ing the President to com­mute the sen­tences of every­one on fed­er­al death row.