The Federal Government Restarts Federal Executions Amid Procedural Concerns and a Pandemic

The fed­er­al gov­ern­ment exe­cut­ed Daniel Lewis Lee the morn­ing of July 14, 2020. His exe­cu­tion was the first con­duct­ed by the fed­er­al gov­ern­ment in sev­en­teen years, and it was fol­lowed close­ly by the exe­cu­tions of Wesley Ira Purkey (July 16) and Dustin Lee Honken (July 17). With these exe­cu­tions, the fed­er­al gov­ern­ment has joined the small minor­i­ty of juris­dic­tions that con­duct exe­cu­tions and the even small­er num­ber of juris­dic­tions that are will­ing to pur­sue them in the midst of the worst glob­al pan­dem­ic in gen­er­a­tions. The resump­tion of exe­cu­tions along with the government’s dis­re­gard for pro­ce­dur­al pro­tec­tions and estab­lished norms firm­ly place it in the ​“out­lier” cat­e­go­ry at a time when sup­port for cap­i­tal pun­ish­ment is at a historic low.

On July 25, 2019, the Department of Justice (DOJ) announced that the fed­er­al gov­ern­ment intend­ed to restart fed­er­al exe­cu­tions and that Attorney General William Barr had direct­ed the Federal Bureau of Prisons (BOP) to adopt a new pro­to­col spec­i­fy­ing that fed­er­al exe­cu­tions would be car­ried out using the drug pen­to­bar­bi­tal. Although the fed­er­al gov­ern­ment had not con­duct­ed any exe­cu­tions in six­teen years, Barr direct­ed the BOP to sched­ule five exe­cu­tions in a five-week peri­od, with the first three exe­cu­tions sched­uled over a peri­od of five days. The BOP set exe­cu­tion dates for Daniel Lewis Lee (December 9), Lezmond Mitchell (December 11), Wesley Ira Purkey (December 13), Alfred Bourgeois (January 13), and Dustin Lee Honken (January 15).

Prior to Barr’s announce­ment, the last fed­er­al exe­cu­tion notice had been issued for Bruce Webster on April 16, 2007. Webster’s exe­cu­tion was stayed, and his death sen­tence was sub­se­quent­ly vacat­ed on June 28, 2019 when a fed­er­al dis­trict court judge found Webster intel­lec­tu­al­ly dis­abled, mak­ing him inel­i­gi­ble for the death penal­ty. Critics of the fed­er­al death penal­ty argue that it is plagued by many of the same prob­lems as state death-penal­ty sys­tems, includ­ing racial bias (55% of defen­dants sen­tenced to death in the last decade were peo­ple of col­or), geo­graph­i­cal arbi­trari­ness (just three states — Virginia, Texas, and Missouri — are respon­si­ble for near­ly half of all fed­er­al death-row pris­on­ers), and dis­par­i­ties in the qual­i­ty and fund­ing of defense counsel.

After the announce­ment of exe­cu­tion dates, the government’s short-cir­cuit­ing of estab­lished rule­mak­ing pro­ce­dures and its com­pressed exe­cu­tion sched­ule set off a flur­ry of lit­i­ga­tion chal­leng­ing the legal­i­ty and con­sti­tu­tion­al­i­ty of the exe­cu­tion pro­to­col, as well as case-relat­ed lit­i­ga­tion on the con­sti­tu­tion­al­i­ty of the indi­vid­ual exe­cu­tions. The poten­tial resump­tion of fed­er­al exe­cu­tions also gal­va­nized a vari­ety of stake­hold­ers to speak out against the government’s plans.

The announce­ment of the resump­tion of fed­er­al exe­cu­tions was crit­i­cized by cor­rec­tions offi­cials, reli­gious lead­ers, con­ser­v­a­tive com­men­ta­tors, for­mer state and fed­er­al judges, pros­e­cu­tors, law enforce­ment and cor­rec­tions offi­cials, and fam­i­ly mem­bers of homicide victims. 

A for­mer high-rank­ing fed­er­al cor­rec­tions offi­cial warned that the fed­er­al government’s exe­cu­tion plan risks seri­ous­ly trau­ma­tiz­ing cor­rec­tion­al work­ers. Allen Ault is a for­mer chief of the Justice Department’s National Institute of Corrections who also served as cor­rec­tions com­mis­sion­er in Georgia, Mississippi, and Colorado, and as chair­man of the Florida Department of Corrections. In a July 31, 2019 op-ed in The Washington Post, Ault said, ​“I know from my own first­hand expe­ri­ences, super­vis­ing exe­cu­tions as a state direc­tor of cor­rec­tions, that the dam­age exe­cu­tions inflict on cor­rec­tion­al staff is deep and far-ranging.” 

Ault’s op-ed described the men­tal and emo­tion­al toll that exe­cu­tions take on cor­rec­tions offi­cials, includ­ing those who do not direct­ly par­tic­i­pate in the exe­cu­tion. ​“Psychologists have described the impact of exe­cu­tions on cor­rec­tion­al staff as sim­i­lar to that suf­fered by bat­tle­field vet­er­ans,” Ault wrote. ​“But in my mil­i­tary expe­ri­ence, there was one major dif­fer­ence: The ene­my was an anony­mous, armed com­bat­ant who was threat­en­ing my life. In an exe­cu­tion, the con­demned pris­on­er is a known human being who is total­ly defense­less when brought into the death cham­ber. Staff mem­bers know that he has been secured safe­ly for many years before his exe­cu­tion and pos­es no threat to them per­son­al­ly.” Other cor­rec­tions offi­cers are also affect­ed, Ault said. ​“The trau­ma extends through the many cor­rec­tion­al staff who inter­act every day with death row pris­on­ers, often form­ing mean­ing­ful bonds over the course of many years and, in many cas­es, wit­ness­ing their changed mind-sets and pro­found remorse.” He report­ed that exe­cu­tions can cause ​“depres­sion, anx­i­ety and oth­er men­tal and phys­i­cal impacts” in oth­er mem­bers of the prison community.

According to Ault, the ​“com­pressed sched­ule” pro­posed by the fed­er­al gov­ern­ment ​“caus­es an extend­ed dis­rup­tion to nor­mal prison oper­a­tions and pre­cludes any attempt to return to nor­mal­cy fol­low­ing an exe­cu­tion. It also pre­vents any mean­ing­ful review by exe­cu­tion team mem­bers and oth­er offi­cials to address prob­lems or con­cerns in the exe­cu­tion process. That increas­es the risk that some­thing could go hor­ri­bly wrong in the next exe­cu­tion. And if a ​‘rou­tine’ exe­cu­tion is trau­ma­tiz­ing for all involved, a botched one is devastating.” 

A num­ber of con­ser­v­a­tive com­men­ta­tors voiced strong oppo­si­tion to the DOJ deci­sion, say­ing it vio­lat­ed con­ser­v­a­tive val­ues. Jared Olsen, a Republican mem­ber of the Wyoming House of Representatives who has spon­sored leg­is­la­tion to abol­ish that state’s death penal­ty, not­ed the con­tin­u­ing con­ser­v­a­tive move­ment away from cap­i­tal pun­ish­ment as ​“more con­ser­v­a­tives have come to real­ize that cap­i­tal pun­ish­ment con­flicts irrec­on­cil­ably with their prin­ci­ples of valu­ing life, fis­cal respon­si­bil­i­ty and lim­it­ed gov­ern­ment.” In an op-ed in in The New York Times, Olsen ques­tioned the admin­is­tra­tion of the fed­er­al death penal­ty, writ­ing: ​“Punishment for crime has his­tor­i­cal­ly been a state pre­rog­a­tive. Yet many of the peo­ple on fed­er­al death row are there for crimes that have lit­tle to do with a real fed­er­al inter­est.” An opin­ion arti­cle for Fox News by Hannah Cox, the National Manager of Conservatives Concerned About the Death Penalty, described the death penal­ty as ​“a failed Big Government pro­gram” that offends con­ser­v­a­tive val­ues, and said “[o]ur fed­er­al gov­ern­ment is fail­ing by embracing it.” 

The U.S. Conference of Catholic Bishops crit­i­cized the administration’s deci­sion to sched­ule five exe­cu­tion dates. In a state­ment on behalf of the Conference, Bishop Frank J. Dewane wrote: ​“In light of [the Church’s] long held and strong­ly main­tained posi­tions, I am deeply con­cerned by the announce­ment by the United States Justice Department that it will once again turn, after many years, to the death penal­ty as a form of pun­ish­ment.” The state­ment urged fed­er­al offi­cials to ​“aban­don the announced plans for exe­cu­tions.” Cardinal Blase J. Cupich called the announce­ment ​“grave­ly inju­ri­ous to the com­mon good, as it effaces the God-giv­en dig­ni­ty of all human beings, even those who have com­mit­ted terrible crimes.” 

In November 2019, hun­dreds of for­mer state and fed­er­al judges, pros­e­cu­tors, law enforce­ment and cor­rec­tions offi­cials, and fam­i­ly mem­bers of homi­cide vic­tims signed on to a series of let­ters urg­ing the fed­er­al gov­ern­ment to halt the sched­uled fed­er­al exe­cu­tions. In four sep­a­rate let­ters addressed to President Donald Trump and Attorney General William Barr, 175 fam­i­ly mem­bers of mur­der vic­tims, 65 for­mer state and fed­er­al judges, 59 cur­rent and for­mer state and fed­er­al pros­e­cu­tors and law enforce­ment offi­cials, and 26 for­mer cor­rec­tion­al pro­fes­sion­als offered diverse per­spec­tives on why the sched­uled exe­cu­tions should not take place.

Family mem­bers of mur­der vic­tims were the largest group to urge the admin­is­tra­tion to call off the exe­cu­tions. When Attorney General Barr announced that the fed­er­al gov­ern­ment would resume exe­cu­tions, he attempt­ed to jus­ti­fy that deci­sion as being a ser­vice to vic­tims’ fam­i­lies. Barr said at the time, ​“we owe it to the vic­tims and their fam­i­lies to car­ry for­ward the sen­tence imposed by our justice system.”

The 175 vic­tims’ fam­i­ly mem­bers dis­agreed. Calling for an end to cap­i­tal pun­ish­ment, they wrote: ​“The death penal­ty does not pre­vent vio­lence. It does not solve crime. It does not pro­vide ser­vices for fam­i­lies like ours. It does not help solve the over 250,000 homi­cide cold cas­es in the United States. It exac­er­bates the trau­ma of los­ing a loved one and cre­ates yet anoth­er griev­ing fam­i­ly. It also wastes many mil­lions of dol­lars that could be bet­ter invest­ed in pro­grams that actu­al­ly reduce crime and vio­lence and that address the needs of fam­i­lies like ours.”

The oth­er groups did not advo­cate death-penal­ty abo­li­tion, but crit­i­cized sys­temic flaws in the fed­er­al death penal­ty as cur­rent­ly admin­is­tered and said the exe­cu­tions should be halt­ed. The let­ter from fed­er­al and state judges argued that ​“there are too many prob­lems with the fed­er­al death penal­ty sys­tem, and too many unan­swered ques­tions about the government’s new­ly announced exe­cu­tion pro­ce­dure, to allow exe­cu­tions to pro­ceed.” The judges wrote that, from their expe­ri­ence on the bench, “[r]acial bias, geo­graph­ic dis­par­i­ties, and defi­cient coun­sel played out­sized roles in the deci­sions to seek and impose the death penalty.”

The let­ter from law enforce­ment offi­cials and pros­e­cu­tors — signed by police chiefs, for­mer state attor­neys gen­er­al, for­mer fed­er­al pros­e­cu­tors, and cur­rent and for­mer dis­trict attor­neys — said “[t]he fed­er­al death penal­ty sys­tem is marked by many of the same trou­bling flaws found in the state death penal­ty sys­tems,” list­ing the same con­cerns as the judges, as well as the ​“alarm­ing fre­quen­cy” of wrongful convictions.

The cor­rec­tions offi­cials spoke direct­ly to the effect of exe­cu­tions on prison per­son­nel who must car­ry them out. ​“The psy­cho­log­i­cal toll of car­ry­ing out a death sen­tence is well-doc­u­ment­ed,” they wrote. ​“Those of us who have par­tic­i­pat­ed in exe­cu­tions have expe­ri­enced the trau­ma first-hand, while oth­ers of us have seen the toll it has tak­en on col­leagues. We believe the fed­er­al gov­ern­ment is com­pound­ing the risk to cor­rec­tions staff by sched­ul­ing these exe­cu­tions so close togeth­er.” Their let­ter empha­sized the risk pre­sent­ed by the new pro­to­col, the rushed time­line of exe­cu­tions, and staffing short­ages in the fed­er­al Bureau of Prisons. ​“Our col­leagues at the Bureau are pro­fes­sion­als, but it is incum­bent on lead­ers to avoid putting pub­lic ser­vants in posi­tions where they face a real risk of harm or error. We hope you will recon­sid­er the sched­uled exe­cu­tions to ensure the safe­ty and well­be­ing of fed­er­al corrections officers.”

The vic­tims’ fam­i­ly let­ter includ­ed indi­vid­u­als in high-pro­file cas­es — such as Bud Welch, whose daugh­ter, Julie, was killed in the Oklahoma City bomb­ing, and sev­er­al fam­i­ly mem­bers of peo­ple killed in the 9/​11 ter­ror­ist attacks — as well as numer­ous fam­i­ly mem­bers of vic­tims in cas­es in which pros­e­cu­tors did not seek the death penal­ty or in which the mur­der remains unsolved. The let­ter empha­sized that “[t]he cur­rent sys­tem divides mur­der vic­tims’ fam­i­lies by cher­ry-pick­ing cas­es to receive the dis­pro­por­tion­ate atten­tion and resources of a cap­i­tal tri­al.” This, it said, ​“sends the hurt­ful mes­sage that some mur­ders are worse than oth­ers and some vic­tims mat­ter more than oth­ers, even while most of us nev­er receive the ser­vices we need in the wake of violence.”

Both the judges and the pros­e­cu­tors urged the Attorney General to under­take a sys­temic review of the fed­er­al death penal­ty to redress sys­temic arbi­trari­ness in its imple­men­ta­tion. The judges wrote, ​“just as only 2% of America’s coun­ties pro­duce a major­i­ty of state death sen­tences, we see the same geo­graph­ic con­cen­tra­tion in the fed­er­al sys­tem. Only three states — Texas, Missouri, and Virginia — account for near­ly half of all cur­rent fed­er­al death sen­tences. And as America grap­ples with a reck­on­ing on racial injus­tice, we see that peo­ple of col­or make up 55% of those on fed­er­al death row.” They called the racial dis­par­i­ty ​“espe­cial­ly stark in the states with the most fed­er­al death sentences.”

In addi­tion to its racial dis­par­i­ties, the judges wrote that, “[o]verwhelmingly,” those sen­tenced to death in the fed­er­al sys­tem ​“are poor, suf­fer from men­tal ill­ness, and/​or were sub­ject­ed to relent­less trau­ma in their devel­op­men­tal years. In oth­er words, the fed­er­al death penal­ty is not imposed on ​‘the worst of the worst.’ Instead, just as in the states, it is applied in a biased man­ner against the most vulnerable populations.”

The pros­e­cu­tors raised sim­i­lar con­cerns and also ques­tioned the deci­sion to divert lim­it­ed fed­er­al law enforce­ment resources to cost­ly cap­i­tal pros­e­cu­tions and appeals. ​“Death penal­ty cas­es are extreme­ly expen­sive,” they wrote, ​“requir­ing many more human and finan­cial resources than cas­es where the death penal­ty is not pur­sued. There are rea­son­able ques­tions about whether these resources could be bet­ter used on oth­er pub­lic safe­ty pri­or­i­ties, such as ensur­ing that law enforce­ment offi­cers through­out the coun­try have access to need­ed equip­ment and tech­nol­o­gy, and expand­ing units devot­ed to resolv­ing cold cases.”

They pros­e­cu­tors said they ​“are deeply con­cerned that the fed­er­al gov­ern­ment plans to pro­ceed with exe­cu­tions despite seri­ous ques­tions about the fair­ness and reli­a­bil­i­ty of the sys­tem that con­demned” the pris­on­ers slat­ed to die. They wrote, “[w]e urge you to pre­vent this injus­tice by with­draw­ing the sched­uled exe­cu­tion dates, and order­ing that no fed­er­al exe­cu­tions occur until a com­pre­hen­sive review of the sys­tem can be completed.”

Federal death row pris­on­ers have been chal­leng­ing the Department of Justice’s exe­cu­tion pro­to­col for more than a decade, through sev­er­al changes in the fed­er­al lethal injec­tion pro­to­col. During this time, the death row pris­on­ers who were part of the main lethal injec­tion law­suit (Roane v. Gonzales) suc­cess­ful­ly sought a pre­lim­i­nary injunc­tion pre­vent­ing their exe­cu­tion. The lit­i­ga­tion stalled while the fed­er­al gov­ern­ment stud­ied mak­ing changes in the exe­cu­tion pro­to­col neces­si­tat­ed by drug unavailability. 

On July 25, 2019, the same day that Attorney General Barr announced the resump­tion of fed­er­al exe­cu­tions, the fed­er­al gov­ern­ment filed a revised pro­to­col in the pend­ing cas­es. The gov­ern­ment set exe­cu­tion dates for five pris­on­ers who were not cov­ered by the pre­lim­i­nary injunc­tion, Lezmond Mitchell, Alfred Bourgeois, Dustin Lee Honken, Daniel Lewis Lee, and Wesley Ira Purkey. The deci­sion to exe­cute pris­on­ers not cov­ered by the exist­ing pre­lim­i­nary injunc­tion raised ques­tions about whether the gov­ern­ment was try­ing to fast track exe­cu­tions to evade judi­cial review of the new pro­to­col. Bourgeois, Honken, Lee, and Purkey request­ed a pre­lim­i­nary injunc­tion to halt their exe­cu­tions based on defi­cien­cies with the sub­stance of and the man­ner of adopt­ing the revised execution protocol.

Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia issued a preliminary injunction on November 20 that halt­ed the fed­er­al exe­cu­tions pend­ing com­ple­tion of court chal­lenges to the legal­i­ty of the fed­er­al government’s exe­cu­tion process. The rul­ing found that the government’s pro­posed exe­cu­tion pro­to­col con­flict­ed with the pro­vi­sions of the fed­er­al death penal­ty statute Congress passed in 1994 and that the pris­on­ers were like­ly to pre­vail on their claim that the DOJ had ​“exceed­ed its statu­to­ry author­i­ty” in adopt­ing the protocol.

The DOJ then filed an emer­gency appli­ca­tion in the United States Court of Appeals for the District of Columbia Circuit ask­ing the appeals court to vacate or stay enforce­ment of the injunc­tion. In an unsigned order issued on December 2, the court unan­i­mous­ly declined to dis­turb the injunc­tion. The one-page order did not address the legal­i­ty of the government’s exe­cu­tion pro­to­col or whether the District Court had prop­er­ly issued the injunc­tion, but held that the DOJ and the BOP had ​“not sat­is­fied the strin­gent require­ments” to vacate the injunc­tion — and per­mit exe­cu­tions — before the appeals court could rule on the mer­its of the appeal.

Within hours of that rul­ing, the DOJ filed an appli­ca­tion in the U.S. Supreme Court ask­ing it to lift the injunc­tion. The DOJ appli­ca­tion had incor­rect­ly assert­ed that the Circuit Court had upheld the injunc­tion, the mer­its of which was still pend­ing on appeal before the cir­cuit. The Justices unan­i­mous­ly declined to vacate the injunc­tion. However, they direct­ed the fed­er­al appeals court to expe­di­tious­ly address the government’s appeal of the injunc­tion, writ­ing: ​“We expect that the Court of Appeals will ren­der its deci­sion with appropriate dispatch.”

In April 2020, a pan­el of the U.S. Court of Appeals for the District of Columbia Circuit issued a frac­tured rul­ing lift­ing the injunc­tion that had blocked the fed­er­al gov­ern­ment from car­ry­ing out exe­cu­tions. The court’s per curi­am opin­ion stat­ed ​“Each mem­ber of the pan­el takes a dif­fer­ent view of what the FDPA [Federal Death Penalty Act] requires. Because two of us believe that the dis­trict court mis­con­strued the FDPA, we vacate the pre­lim­i­nary injunc­tion.” The pan­el left the dis­trict court to decide the pris­on­ers’ chal­lenges to the pro­posed exe­cu­tion drugs brought under the Food, Drug, and Cosmetic Act and the Controlled Substances Act, as well as claims relat­ed to the con­sti­tu­tion­al­i­ty of the pro­to­col and a claim that the pro­to­col is arbi­trary and capri­cious under the fed­er­al Administrative Procedures Act. 

The pris­on­ers unsuc­cess­ful­ly sought review by the full D.C. Circuit and then filed a peti­tion for writ of cer­tio­rari to the U.S. Supreme Court. While the peti­tion was pend­ing, U.S. Attorney General William Barr on June 15, 2020 set exe­cu­tion dates for four fed­er­al death-row pris­on­ers, includ­ing three who were involved in the pend­ing case. The death notices sched­uled three exe­cu­tions over a five-day peri­od in July and a fourth exe­cu­tion in late August. The gov­ern­ment set the exe­cu­tions of Daniel Lewis Lee (July 13), Wesley Ira Purkey (July 15), Dustin Lee Honken (July 17), and Keith Dwayne Nelson (August 28).

The DOJ’s news release described the D.C. Circuit’s deci­sion as hav­ing ​“clear[ed] the way for the fed­er­al gov­ern­ment to resume cap­i­tal pun­ish­ment after a near­ly two-decade hia­tus.” The release omit­ted any ref­er­ence to the con­tin­u­ing lit­i­ga­tion over the legal­i­ty of the pri­or exe­cu­tion dates. It also assert­ed that the four pris­on­ers ​“have received full and fair pro­ceed­ings under our Constitution and laws. We owe it to the vic­tims of these hor­rif­ic crimes, and to the fam­i­lies left behind, to car­ry for­ward the sen­tence imposed by our justice system.”

A group of 15 admin­is­tra­tive law experts filed an ami­cus curi­ae brief in sup­port of the death-row pris­on­ers’ request that Supreme Court over­turn the D.C. Circuit’s deci­sion. According to the ami­cus brief, ​“This case presents a tri­fec­ta of clas­sic admin­is­tra­tive-law prob­lems: The Bureau of Prisons (BOP) (1) mis­in­ter­pret­ed a statute, (2) after hav­ing failed to engage in required notice-and-com­ment process­es, and (3) the court below upheld BOP’s action on grounds not pro­vid­ed by the agency itself.” Despite this sup­port, the Supreme Court denied cer­tio­rari review on June 29, 2020 over the dis­sent of Justices Ginsburg and Sotomayor.

The Supreme Court’s denial of cer­tio­rari did not end the exe­cu­tion pro­to­col lit­i­ga­tion as sev­er­al claims remained before the dis­trict court. In addi­tion, lit­i­ga­tion con­tin­ued for the pris­on­ers fac­ing immi­nent exe­cu­tion on indi­vid­ual claims in fed­er­al dis­trict and cir­cuit courts across the country.

In March 2020, the World Health Organization declared the nov­el coro­n­avirus a glob­al pan­dem­ic. In response to the risk of an expo­nen­tial rise in infec­tions, seri­ous ill­ness­es, and death, much of the United States oper­at­ed for months under shut-down orders that required res­i­dents to shel­ter in place and forego non-essen­tial trav­el and min­i­mize face-to-face inter­ac­tions with those out­side their house­hold. The pan­dem­ic had a seri­ous effect on the fed­er­al death-row pris­on­ers facing execution.

The Federal Bureau of Prisons’ emer­gency rules stopped all vis­its to pris­ons in order to min­i­mize the risks to vis­i­tors and pris­on­ers. This made it impos­si­ble for attor­neys to vis­it the death-row pris­on­ers in the lead-up to the exe­cu­tions. The death-row pris­on­ers filed motions to move their exe­cu­tions dates because of the glob­al pan­dem­ic, but these motions were denied by the fed­er­al courts. Other poten­tial par­tic­i­pants in the exe­cu­tion were forced to make dif­fi­cult deci­sions made nec­es­sary by the fed­er­al government’s insis­tence on going for­ward with exe­cu­tions dur­ing the pan­dem­ic. As a result, sev­er­al law­suits were filed to post­pone the exe­cu­tions until the pandemic abates.

Family mem­bers of the vic­tims in Lee’s case filed suit to request that Lee’s exe­cu­tion be delayed until it was safe for them to trav­el to Indiana to wit­ness it. Earlene Peterson, the moth­er and grand­moth­er of two of the vic­tims, is 81 years old and was advised by her doc­tor not to trav­el dur­ing the COVID-19 pan­dem­ic. She stat­ed, ​“I am very fear­ful of the virus due to my age, my med­ical con­di­tions, and the advice of my doc­tor…. I bought a full tank of gas for my car on March 10, and my tank is still full because I have not been going out almost at all for four months.” Her sur­viv­ing daugh­ter, Kimma Gurel, and grand­daugh­ter, Monica Veillette, joined her law­suit. They both have med­ical con­di­tions plac­ing them at height­ened risk for COVID-19. When Lee’s exe­cu­tion date was ini­tial­ly set in 2019, Peterson issued an emo­tion­al plea for clemen­cy, say­ing that exe­cut­ing him would dis­hon­or her daugh­ter and grand­daugh­ter and vio­late her beliefs. 

The family’s attor­ney rebuked the Attorney General for assert­ing that the exe­cu­tions were nec­es­sary to bring jus­tice for vic­tims’ fam­i­lies, then ignor­ing the con­cerns raised by fam­i­ly mem­bers. ​“Despite repeat­ed­ly stat­ing that it was pur­su­ing the exe­cu­tion of Lee on behalf of crime vic­tims and their fam­i­lies, the gov­ern­ment now argues that those vic­tims have no inter­est in the mat­ter,” the family’s attor­ney wrote. ​“The government’s motion belit­tles [the fam­i­ly mem­bers’] safe­ty con­cerns by refer­ring to their pur­port­ed trav­el ​‘pref­er­ences’ and sup­posed ​‘will­ing­ness’ to attend the exe­cu­tion.” The fam­i­ly ​“faces the unac­cept­able choice between exer­cis­ing their right to wit­ness the exe­cu­tion and risk­ing expo­sure to a deadly disease.” 

Religious advi­sors for Wesley Purkey and Dustin Honken sought stays of exe­cu­tion because of the dan­ger of attend­ing an exe­cu­tion dur­ing the pan­dem­ic. Purkey’s spir­i­tu­al advi­sor, Rev. Dale Hartkemeyer, a 68-year-old Buddhist priest who served as Purkey’s spir­i­tu­al guide, had vis­it­ed Purkey month­ly since January 2009. A suit filed on Hartkemeyer’s behalf by the ACLU argued that his age and a lung con­di­tion placed him at high risk from COVID-19. ​“I’m being asked to make an impos­si­ble deci­sion — vio­late my reli­gious beliefs or risk my health and life by attend­ing an exe­cu­tion that could become a ​‘super-spread­er’ event for COVID-19,” he wrote in a blog post. 

Hartkemeyer wrote: ​“It’s vital that I be there, as Wes’s priest, to ensure this peace­ful tran­si­tion from life to death dur­ing his most dire moment of dis­tress — his ulti­mate cri­sis — as he sits at the thresh­old of death. I will chant from behind a plex­i­glass bar­ri­er to ensure his peace of mind while pass­ing and, through my phys­i­cal pres­ence, serve as a spir­i­tu­al reminder to Wes of all the reli­gious lessons I have taught him as he pass­es on from this life. This is my sacred duty.” Hartkemeyer’s suit was joined by Father Mark O’Keefe, a Catholic priest who was serv­ing as spir­i­tu­al advi­sor to Dustin Honken.

Concerns about the risk of virus trans­mis­sion were seem­ing­ly con­firmed on July 12, when the Justice Department said a staff mem­ber engag­ing in exe­cu­tion prepa­ra­tions at the Terre Haute prison had test­ed pos­i­tive for COVID-19. Despite this fact, all legal chal­lenges to the exe­cu­tion based on the pan­dem­ic were denied.

(Executed July 14, 2020)

Daniel Lewis Lee and co-defen­dant Chevie Kehoe were con­vict­ed in 1999 of killing Nancy Mueller, her hus­band William Mueller, and her 8‑year-old daugh­ter Sarah Powell. Lee’s bid for exec­u­tive clemen­cy was sup­port­ed by Mueller’s fam­i­ly, the pros­e­cu­tor, and the judge who tried him in an Arkansas fed­er­al court. They all believed that exe­cut­ing Lee would be a mis­car­riage of jus­tice giv­en the life sen­tence imposed on his much more cul­pa­ble co-defen­dant. Judge G. Thomas Eisele described Kehoe as the ​“ring­leader,” and tri­al tes­ti­mo­ny showed that Kehoe killed Sarah Powell after Lee refused, say­ing he would not kill a child. 

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 sched­uled fed­er­al 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.

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.” 

(Executed July 16, 2020)

Wesley Ira Purkey was exe­cut­ed at the United States Penitentiary Terre Haute and pro­nounced dead at 8:19 a.m. on July 16, 2020, more than 15 hours after the time the Federal Bureau of Prisons had set for a sched­uled July 15 exe­cu­tion. Three Supreme Court rul­ings issued at about 2:45 a.m. removed poten­tial legal imped­i­ments for his exe­cu­tion, but the date for his sched­uled exe­cu­tion had passed. Interpreting reg­u­la­to­ry pro­vi­sions that required the Director of the Bureau of Prisons to pro­vide a pris­on­er notice of a new exe­cu­tion date as per­mit­ting an imme­di­ate exe­cu­tion, prison offi­cials report­ed­ly read Purkey a one-page let­ter inform­ing him he would be exe­cut­ed on July 16. 

Purkey’s exe­cu­tion fol­lowed a sim­i­lar tra­jec­to­ry to the fed­er­al government’s exe­cu­tion of Daniel Lewis Lee’s 48 hours ear­li­er. As in Lee’s case, the Supreme Court issued post‑2:00 a.m. rul­ings vacat­ing pre­lim­i­nary injunc­tions issued by a Washington, D.C. fed­er­al dis­trict court and nul­li­fy­ing brief­ing sched­ules set by a fed­er­al appeals court pan­el in Washington that expe­dit­ed con­sid­er­a­tion of the government’s chal­lenge to the injunc­tion. And in both cas­es, the gov­ern­ment left no oppor­tu­ni­ty to chal­lenge the notice it pro­vid­ed of an imme­di­ate morn­ing exe­cu­tion after the orig­i­nal death notice expired. 

“Wes Purkey’s exe­cu­tion should shock the con­science of any­one who cares about jus­tice and the rule of law,” his lawyer, Rebecca Woodman, said in a state­ment. ​“The gov­ern­ment used every weapon in its arse­nal to pre­vent any court from decid­ing the mer­its of his incom­pe­ten­cy claim, even as evi­dence in its own pos­ses­sion showed Mr. Purkey’s men­tal capac­i­ty was pro­found­ly impaired. And by bar­rel­ing ahead to exe­cute dur­ing the COVID-19 pan­dem­ic, the gov­ern­ment reck­less­ly placed hun­dreds of peo­ple at seri­ous and unnecessary risk.”

A Divided Supreme Court Blocks Legal Review of Issues in Purkey’s Case

Lower courts had issued three sep­a­rate orders halt­ing Purkey’s exe­cu­tion to per­mit review of issues involv­ing the legal­i­ty of the fed­er­al exe­cu­tion process, his men­tal com­pe­ten­cy, and whether there was a pro­ce­dur­al vehi­cle avail­able for courts to con­sid­er his claim of inef­fec­tive penal­ty-phase rep­re­sen­ta­tion. A divid­ed Supreme Court vacat­ed all three and reject­ed two oth­er peti­tions to post­pone the execution.

On July 2, a pan­el of the U.S. Court of Appeals for the Seventh Circuit issued a stay of exe­cu­tion to per­mit Purkey to seek review of a pro­ce­dur­al rul­ing that had blocked the court from con­sid­er­ing issues relat­ed to inef­fec­tive rep­re­sen­ta­tion in the penal­ty phase of his tri­al and defects in his sen­tenc­ing jury’s con­sid­er­a­tion of mit­i­gat­ing evi­dence. The pan­el had denied Purkey’s claim on pro­ce­dur­al grounds but decid­ed that the exe­cu­tion sched­ule announced by the fed­er­al gov­ern­ment the day before oral argu­ment in Purkey’s case should not be per­mit­ted to inter­fere with the Court’s abil­i­ty to ful­ly review Purkey’s claims, includ­ing a poten­tial motion for rehear­ing. Early in the evening of July 15, a divid­ed United States Supreme Court dis­agreed, vot­ing 5 – 4 with­out opin­ion to vacate the stay. Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor dissented.

That rul­ing left the Court with four unre­solved issues to decide: 

• Federal pros­e­cu­tors’ request to vacate a pre­lim­i­nary injunc­tion issued by the fed­er­al dis­trict court in Washington, D.C., on the pris­on­ers’ remain­ing chal­lenges to the fed­er­al execution protocol;
• The pros­e­cu­tors’ request to vacate the fed­er­al dis­trict court’s pre­lim­i­nary injunc­tion on Purkey’s claim of incom­pe­ten­cy to be executed;
• An appli­ca­tion by Purkey’s 68-year-old spir­i­tu­al advi­sor with an under­ly­ing health con­di­tion to delay the exe­cu­tion so that he could min­is­ter to Purkey at the exe­cu­tion with­out risk­ing his own life and health; and
• Purkey’s peti­tion ask­ing the Court to review the Seventh Circuit’s pro­ce­dur­al rul­ings on his ineffectiveness claim.

In a series of 2:45 a.m. rul­ings with­out com­ment on July 16, the Court grant­ed the pros­e­cu­tors’ requests to vacate the injunc­tions and denied the defense-asso­ci­at­ed requests to stay the exe­cu­tion. Four jus­tices strong­ly dis­sent­ed from the Court’s deci­sion in Purkey’s competency case. 

Justice Sotomayor authored the prin­ci­pal dis­sent, joined by Justices Breyer, Ginsburg, and Kagan. Sotomayor sharply crit­i­cized the Court’s ​“deci­sion to short­cut judi­cial review and per­mit the exe­cu­tion of an indi­vid­ual who may well be incom­pe­tent.” She reject­ed the pros­e­cu­tors’ asser­tion that Purkey should be exe­cut­ed because he labeled his claim a civ­il rights claim relat­ed to his exe­cu­tion instead of a habeas cor­pus claim relat­ed to his death sen­tence and filed in the court con­sid­er­ing the con­sti­tu­tion­al­i­ty of the fed­er­al exe­cu­tion process instead of the court in which he had been tried. ​“It is … undis­put­ed that there is a District Court in which Purkey may prop­er­ly pur­sue his [com­pe­ten­cy] claim and his request for a com­pe­ten­cy hear­ing,” she wrote. Given the evi­dence of Purkey’s Alzheimer’s diag­no­sis, and his ​“his­to­ry of delu­sions, hal­lu­ci­na­tions, and para­noia,” Justice Sotomayor con­clud­ed that ​“the Government has not come close to show­ing that the District Court erred in find­ing Purkey like­ly to suc­ceed on the mer­its of his [claims].”

Justice Breyer authored a sec­ond dis­sent, joined by Justice Ginsburg, reit­er­at­ing his con­cerns with the con­sti­tu­tion­al­i­ty of cap­i­tal pun­ish­ment. Purkey’s and Lee’s cas­es, he wrote, ​“have come before us with the defen­dants point­ing to what I believe are seri­ous legal defects of a kind that have long plagued the admin­is­tra­tion of the death penal­ty in the United States.” Lee’s case, Breyer said, illus­trates the arbi­trari­ness, inevitable delay, pro­ce­dur­al unfair­ness, and uncer­tain reli­a­bil­i­ty of the death penal­ty process, as ​“Lee was sen­tenced to death and his code­fen­dant to life even though the two men com­mit­ted the same crime.” Purkey, he wrote, ​“is now 68 years old, frail, and suf­fer­ing from Alzheimer’s dis­ease and oth­er psy­chi­atric con­di­tions” after 16 years of incar­cer­a­tion of death row, under­min­ing any pos­si­ble deter­rent or ret­ribu­tive val­ue to his execution.

“A mod­ern sys­tem of crim­i­nal jus­tice,” Breyer wrote, ​“must be rea­son­ably accu­rate, fair, humane, and time­ly. Our recent expe­ri­ence with the fed­er­al government’s resump­tion of exe­cu­tions adds to the mount­ing body of evi­dence that the death penal­ty can­not be rec­on­ciled with those val­ues. I remain con­vinced of the impor­tance of recon­sid­er­ing the con­sti­tu­tion­al­i­ty of the death penalty itself.”

Purkey is Executed While Proceedings Are Pending in the Seventh Circuit Court of Appeals

After the Supreme Court’s deci­sions, Purkey refiled his com­pe­ten­cy claim in Indiana fed­er­al dis­trict court. The Indiana dis­trict court tem­porar­i­ly stayed the exe­cu­tion to con­sid­er Purkey’s fil­ings. With the dis­trict court action pend­ing, Purkey filed an emer­gency appli­ca­tion in the Seventh Circuit for a stay of exe­cu­tion at 3:35 a.m. Central (4:35 a.m. Eastern), accord­ing to time-stamped entries in the appeals dock­et. As Purkey’s lawyers were prepar­ing a plead­ing noti­fy­ing the Circuit Court that the dis­trict court had denied their peti­tion, the Bureau of Prisons moved for­ward with the execution.

At 7:53 a.m., prison offi­cials allowed media wit­ness­es to view the exe­cu­tion cham­ber. IV’s had already been insert­ed in Purkey’s arms. At 7:58 a.m. Eastern, defense coun­sel filed a Motion for Stay of the July 16, 2020 Execution While Pending Appeal with the Seventh Circuit. By then, a chap­lain in ​“full PPE” was pray­ing inside the cham­ber. Purkey was pro­nounced dead at 8:19 am. Two hours lat­er, the Circuit Court entered its final order: ​“Appellant’s sen­tence has been car­ried out ren­der­ing the motions and the appeal moot. Accordingly, all pend­ing motions are DENIED and this appeal is DISMISSED as moot.”

“We should expect more of our fed­er­al gov­ern­ment than the rushed exe­cu­tion of a dam­aged and delu­sion­al old man,” Woodman said. ​“As the dis­trict court in Washington, D.C. quot­ed …, ​‘the pub­lic inter­est has nev­er been and could nev­er be served by rush­ing to judg­ment at the expense of a con­demned inmate’s con­sti­tu­tion­al rights.’ What hap­pened today is truly abhorrent.”

(Executed July 17, 2020)

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