ProPublica Investigation Reveals Irregularities in Federal Executions

The fed­er­al government’s his­tor­i­cal­ly aber­rant exe­cu­tion spree has been fraught with irreg­u­lar­i­ties and ​“has tram­pled over an array of bar­ri­ers, both legal and prac­ti­cal,” accord­ing to an inves­tiga­tive report by the non-prof­it news orga­ni­za­tion, ProPublica.

In a December 23, 2020 news sto­ry by reporter Isaac Arnsdorf, based upon an analy­sis of court records, ProPublica details a pat­tern of gov­ern­ment secre­cy, deceit, and mis­con­duct dur­ing the course of con­duct­ing more exe­cu­tions in five months than were car­ried out in any of the last twelve pres­i­den­cies. The report por­trays an admin­is­tra­tion more inter­est­ed in per­form­ing exe­cu­tions than in fol­low­ing the rule of law, shin­ing a spot­light on a litany of ques­tion­able actions by offi­cials in the Department of Justice (DOJ) and Bureau of Prisons (BOP) in pur­chas­ing exe­cu­tion drugs, select­ing cas­es for exe­cu­tion, and expe­dit­ing the exe­cu­tions of death-row prisoners.

Arsdorf sum­ma­rizes the administration’s con­duct in one stun­ning para­graph: ​“Officials gave pub­lic expla­na­tions for their choice of which pris­on­ers should die that mis­stat­ed key facts from the cas­es. They moved ahead with exe­cu­tions in the mid­dle of the night. They left one pris­on­er strapped to the gur­ney while lawyers worked to remove a court order. They exe­cut­ed a sec­ond pris­on­er while an appeal was still pend­ing, leav­ing the court to then dis­miss the appeal as ​‘moot’ because the man was already dead. They bought drugs from a secret phar­ma­cy that failed a qual­i­ty test. They hired pri­vate exe­cu­tion­ers and paid them in cash.”

Citing its own review of gov­ern­ment records, as well as a January 2020 depo­si­tion by Associate Deputy Attorney General Brad Weinsheimer, ProPublica describes the process by which the gov­ern­ment sought to obtain lethal-injec­tion drugs. Because American phar­ma­ceu­ti­cal com­pa­nies have refused to sell their prod­ucts for use in exe­cu­tions, the BOP ini­tial­ly intend­ed to buy pow­dered pen­to­bar­bi­tal from a ​“for­eign FDA-reg­is­tered facil­i­ty,” but lat­er pur­chased it from a domes­tic bulk man­u­fac­tur­er. The BOP also con­sid­ered using the opi­oid fen­tanyl for the exe­cu­tions, going as far as find­ing a sup­pli­er, but backed away from the idea when then-BOP Director Mark S. Inch warned ​“there may be neg­a­tive pub­lic­i­ty asso­ci­at­ed with using a drug to which so many Americans are addicted.” 

The gov­ern­ment has kept secret the sup­pli­er of its exe­cu­tion drugs and the iden­ti­ties of the lab­o­ra­to­ries that test­ed them, fear­ing that the com­pa­nies would not par­tic­i­pate in the exe­cu­tion process if sub­ject­ed to pub­lic scruti­ny. A Reuters report in July found that “[i]n some cas­es, even the com­pa­nies involved in test­ing the dead­ly pen­to­bar­bi­tal said they didn’t know its intend­ed pur­pose. Among them is DynaLabs in down­town St. Louis, a lab­o­ra­to­ry that years ago decid­ed against doing qual­i­ty tests on exe­cu­tion drugs because of the con­tro­ver­sy sur­round­ing capital punishment.” 

Federal author­i­ties have sim­i­lar­ly refused to dis­close the iden­ti­ty or even the pro­fes­sion of pri­vate con­trac­tors who per­formed the exe­cu­tions, and it paid them in cash to reduce the paper trail sur­round­ing their involve­ment. ​“If we didn’t pay them in cash,” a BOP lawyer said in a depo­si­tion, ​“they prob­a­bly wouldn’t participate.” 

The ProPublica report also doc­u­ments a num­ber of false claims made by the DOJ to the courts and to the pub­lic in con­nec­tion with its exe­cu­tion efforts. DOJ claimed that the BOP had con­sult­ed mul­ti­ple med­ical pro­fes­sion­als in devel­op­ing its exe­cu­tion pro­to­col, when it actu­al­ly had con­sult­ed just one pro­fes­sor of chem­istry and phar­ma­col­o­gy — who was nei­ther a physi­cian nor a care provider — and one retired anesthesiologist. 

The DOJ also pro­vid­ed the pub­lic with inac­cu­rate and mis­lead­ing rea­sons for its selec­tion of cas­es for exe­cu­tion. While the DOJ claimed that the first five pris­on­ers sched­uled for exe­cu­tion were ​“con­vict­ed of mur­der­ing, and in some cas­es tor­tur­ing and rap­ing, the most vul­ner­a­ble in our soci­ety — chil­dren and the elder­ly,” in fact Daniel Lee refused to kill a child. Undisputed evi­dence showed that Lee’s more cul­pa­ble co-defen­dant, whom the tri­al pros­e­cu­tor and tri­al judge described as the ​“ring­leader,” had killed an 8‑year-old girl after Lee refused to kill the child. In announc­ing the exe­cu­tions, Attorney General Bill Barr assert­ed that the gov­ern­ment was doing so because ​“we owe it to the vic­tims and their fam­i­lies.” However, the DOJ had known for years that the fam­i­ly of the vic­tims stren­u­ous­ly opposed Lee’s exe­cu­tion and ignored their request that he be grant­ed clemen­cy. Indeed, accord­ing to Weinsheimer’s depo­si­tion, the DOJ did not con­sult any vic­tims’ fam­i­lies before decid­ing which exe­cu­tions to pursue.

Despite con­cerns from BOP offi­cials about the rushed pace of exe­cu­tions — the first three were sched­uled in a five-day peri­od — fed­er­al author­i­ties nev­er pro­vid­ed any expla­na­tion for their exe­cu­tion time­line. The com­pressed exe­cu­tion sched­ule con­tributed to the chaot­ic legal pro­ceed­ings that took place in the days and hours lead­ing up to the restart of fed­er­al exe­cu­tions in July 2020. The ProPublica report explains how the con­ser­v­a­tive major­i­ty on the U.S. Supreme Court hand­ed down mid­dle-of-the-night rul­ings that allowed exe­cu­tions to pro­ceed with­out res­o­lu­tion of impor­tant legal issues. 

BOP and DOJ offi­cials rushed to imme­di­ate­ly exe­cute Lee, issu­ing a notice of same-day exe­cu­tion after Lee’s exe­cu­tion war­rant expired at mid­night with­out serv­ing that notice upon Lee’s coun­sel. Executioners left Lee strapped to a gur­ney for four hours while DOJ attor­neys worked to lift one remain­ing legal obsta­cle to his exe­cu­tion. Wesley Purkey’s exe­cu­tion the next day had sim­i­lar irreg­u­lar­i­ties: the Supreme Court lift­ed a stay of exe­cu­tion around 2 a.m., two hours after the exe­cu­tion war­rant had expired, and the DOJ noti­fied Purkey’s lawyers of its intent to imme­di­ate­ly pro­ceed with the exe­cu­tion, even as they sought an emer­gency stay on the grounds that Purkey’s Alzheimer’s and schiz­o­phre­nia ren­dered him inca­pable of under­stand­ing his sen­tence. Purkey was exe­cut­ed with an appeal still pend­ing, leav­ing the fed­er­al appeals court to dis­miss his case as moot because Purkey was already dead.

The DOJ pro­vid­ed no expla­na­tion for it select­ed the cas­es it sched­uled for exe­cu­tions car­ried out in November and December. One pris­on­er, Brandon Bernard, was just 18 at the time of the crime, and was known not to have killed the vic­tims. He was the youngest offend­er to be exe­cut­ed in near­ly six­ty years. His case gar­nered sig­nif­i­cant pub­lic atten­tion and calls for clemen­cy from the pros­e­cu­tor and five jurors who con­vict­ed him. Another, Alfred Bourgeois, pre­sent­ed evi­dence of intel­lec­tu­al dis­abil­i­ty that had been reject­ed by a Texas fed­er­al dis­trict court using cri­te­ria for eval­u­at­ing his con­di­tion that had no clin­i­cal basis and were lat­er declared uncon­sti­tu­tion­al. Even after anoth­er dis­trict court ruled that Bourgeois’ claim would like­ly prove his inel­i­gi­bil­i­ty for exe­cu­tion if eval­u­at­ed under accept­ed med­ical cri­te­ria, fed­er­al pros­e­cu­tors suc­cess­ful­ly per­suad­ed appel­late courts to let the exe­cu­tion go forward.

After the ProPublica report was pub­lished, yet anoth­er fed­er­al court found that fed­er­al author­i­ties had also delib­er­ate­ly dis­re­gard­ed COVID-19 health and safe­ty guid­ance, like­ly con­tribut­ing to an explo­sion of coro­n­avirus infec­tions at the Terre Haute Correctional Complex where the exe­cu­tions took place. More than a dozen peo­ple involved in the fed­er­al exe­cu­tion process have con­tract­ed COVID-19, and the out­break at the fed­er­al prison also infect­ed Corey Johnson and Dustin Higgs, who are sched­uled for exe­cu­tion the week of January 11, 2021. In a law­suit filed by oth­er pris­on­ers in the Terre Haute facil­i­ty, a fed­er­al judge found that BOP offi­cials had ​“delib­er­ate­ly cho­sen not to imple­ment CDC guid­ance regard­ing con­tact trac­ing and testing.”