Federal exe­cu­tion updates

Last Updated: September 25, 2020 at 7:00am.

September 2020 Scheduled Executions

Christopher Vialva (EXECUTED September 24)
The U.S. Supreme Court denied Vialva’s request for a stay of execution and for certiorari review of the decision of the U.S. Court of Appeals for the Fifth Circuit denying his challenge to the federal execution protocol. Vialva has requested an injunction against his execution arguing that the federal government violated the Federal Death Penalty Act and the trial court’s order in setting his execution date. The federal district court in Texas denied this claim on September 11, and the Fifth Circuit affirmed that ruling on September 18.

Vialva also filed a habeas corpus petition in federal court in the Southern District of Indiana challenging his conviction and death sentence. That petition included arguments that employing the death penalty against a person of Vialva’s mental age at the time of the offense was constitutional and that prisoners for offenses committed as teenagers constituted cruel and unusual punishment. The district court denied the petition on September 9. On September 18, the U.S. Court of Appeals for the Seventh Circuit summarily affirmed the district court’s denial of Vialva’s habeas corpus petition and denied Vialva’s request for a stay of execution.

William Emmett LeCroy (EXECUTED September 22)
Shortly before 7:30 p.m. Eastern, 1-1/2 hours after his execution was scheduled to begin, the U.S. Supreme Court denied LeCroy’s request for a stay and review of the denial of his motion to halt his scheduled execution based on the inability of his lawyers to meet with him because of the COVID-19 pandemic. A panel of the Eleventh Circuit Court of Appeals denied his appeal on September 16. On September 21, the court denied a stay of execution pending the disposition of his petition for rehearing en banc, and on September 22 the court denied the petition for rehearing.

LeCroy also sought to halt his execution based on arguments that the federal execution protocol violates the Federal Death Penalty Act and Article II of the U.S. Constitution, which requires that the President “take care that the laws be faithfully executed.” That motion was filed in the U.S. District Court in the District of Columbia as part of the federal death-row prisoners’ challenge to the federal execution protocol. The district court denied that motion on September 20 and LeCroy has appealed to the U.S. Court of Appeals for the District of Columbia Circuit. The DC Circuit denied LeCroy’s stay motion on September 21st.

Execution Protocol Litigation Affecting All Executions
On September 20, the U.S. District Court for the District of Columbia issued several decisions affecting the scheduled executions.

  • The court granted the death-row prisoners’ motion for partial summary judgment on their claim that the federal execution protocol violates the Food, Drug, and Cosmetic Act’s premarketing, labeling, and prescription requirements. However, the court denied the prisoners’ motion for a preliminary injunction against their execution, finding that the prisoners had not demonstrated irreparable harm.
  • In the same opinion, the district court granted the government summary judgment on the rest of the prisoners’ Administrative Procedure Act claims and motion to dismiss the remaining claims. The district court reserved judgment on an Eighth Amendment claim brought by prisoner Norris Holders challenging the application of the execution protocol based on facts specific to his case.
  • In a separate opinion, the district court lifted its preliminary injunction barring the executions of Plaintiffs James Roane, Richard Tipton, Cory Johnson, Orlando Hall, Bruce Webster, Anthony Battle, and Jeffrey Paul. The court found that leaving the injunction in place would be inappropriate because it was based on an older three-drug protocol and not the government’s current one-drug protocol.

Related Freedom of Information Act Litigation
The ACLU filed a Freedom of Information Act (FOIA) lawsuit on August 21 seeking to require the Bureau of Prisons (BOP) to disclose documents relating to the prevalence of COVID-19 at federal death row, what measures the BOP has undertaken to address the risk of spreading the virus during the executions, and the costs of carrying out the federal executions during the pandemic. The federal district court denied a temporary restraining order on August 25 but granted in part the ACLU’s motion for a preliminary injunction on September 5. The court ordered the BOP to release COVID-19 testing data from federal death row by September 18. In a September 21 news release, the ACLU maintained that the FOIA data revealed that the BOP undertook inadequate testing and precautions and that this was followed by a COVID-19 outbreak and deaths at the federal prison in Terre Haute, Indiana where the executions took place.


August 2020 scheduled federal executions


The federal government has scheduled the executions of Lezmond Mitchell and Keith Nelson for August 26 and 28, 2020.

Keith Dwayne Nelson (EXECUTED August 28, 2020)

Illegal Use of Pentobarbital: The DC district court has denied Nelson’s motion for a renewed permanent injunction. Nelson’s motion requested that the court include additional details about irreparable harm to address the reason given by the DC Circuit Court of Appeals for vacating the injunction. (Nelson’s Request for New Injunction) (DC District Court Order)

The DC Circuit Court of Appeals has granted the government’s motion to vacate the permanent injunction issued by the DC federal district court on August 27, stating that the district court did not provide enough factual support for its finding of irreparable harm. (DC Circuit Court Order)

The district court granted Nelson summary judgment on his claim that the government’s use of pentobarbital violates the Food, Drug, and Cosmetic Act. The district court found that the FDCA applies to drugs used in executions, and that the government’s use of pentobarbital violated the Act’s ’s premarketing, label, and prescription requirements. As a result, the court entered a permanent injunction barring the government from executing Nelson until it complies with the FDCA. (DC District Court Order)

Cruel and Unusual Punishment: The DC Circuit Court of Appeals has denied Nelson’s stay request to allow consideration of the district court’s dismissal of the prisoners’ 8th Amendment challenge to the federal execution protocol based on the likelihood of excruciating pulmonary edema. (DC District Court opinion) (DC Circuit Court Order)

Lezmond Mitchell (EXECUTED August 26, 2020)

Clemency: On July 31, Mitchell filed a petition for clemency and commutation of his death sentence with the President and the U.S. Pardon Attorney. On August 25, with no ruling on his clemency petition, Mitchell filed a complaint in the U.S. District Court for the District of Columbia seeking an injunction to stop his execution until his clemency petition is resolved. The complaint argues that the short notice of his execution violates his right to full consideration of his application for executive clemency. The district court denied Mitchell’s motion for a temporary restraining order or preliminary injunction on August 26th. (Complaint; DC Dist. Ct. Denial of TRO)

“Manner of Execution”: The U.S. Supreme Court on August 25 denied Mitchell’s motion to stay his execution to allow him to fully litigate a statutory challenge to the federal government’s execution protocol. The issue involves whether the federal protocol complies with the Federal Death Penalty Act’s requirement that federal executions must be carried out in the same manner as they are in the state in which the offense was committed. (AZ Dist Ct Opinion) (9th Cir Opinion) (SCOTUS order)

Jury Bias: The U.S. Supreme Court on August 25 denied Mitchell’s motion to stay his execution and his petition for writ of certiorari asking the court to review his claim that the trial court improperly prevented him from interviewing jurors to develop evidence supporting his claim that the verdict in his case was the product of anti-Native-American bias. (AZ Dist Ct Opinion) (9th Cir Opinion) (SCOTUS briefing)

July 2020 Federal Executions

The Death Penalty Information Center tracked the litigation in the three federal executions scheduled for the week of July 13. The federal government executed Daniel Lee on July 14 and Wesley Purkey on July 16, both the day after their scheduled executions. It executed Dustin Honken on July 17.

Litigation affecting all scheduled executions — The Federal Execution Protocol Litigation

A Federal District Court in Washington, D.C. Issues Three Preliminary Injunctions:
All are Eventually Vacated

Timeline: First Injunction

11/20/19: The U.S. District Court for the District of Columbia (D.C. District Court) issues a preliminary injunction halting the executions of Alfred Bourgeois, Dustin Lee Honken, Daniel Lewis Lee, and Wesley Ira Purkey, finding that the prisoners have demonstrated a substantial likelihood that they will succeed on their claim that the federal government’s execution protocol exceeds the statutory authority granted by the Federal Death Penalty Act.

12/2/19: The U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) denies the federal government’s request to stay/vacate the preliminary injunction order pending the government’s appeal.

12/6/19: The United States Supreme Court refuses to stay or vacate the district court’s preliminary injunction order pending appeal, leaving the executions on hold.

12/9 and 12/13: The preliminary injunction remains in place, temporarily halting the executions of Daniel Lee and Wesley Purkey. The 12/11 scheduled execution of Lezmond Mitchell is stayed on unrelated grounds by the U.S. Court of Appeals for the Ninth Circuit.

1/13/20 and 1/15/20: The preliminary injunction remains in place, temporarily halting the executions of Alfred Bourgeois and Dustin Honken.

4/7: In a 2-1 decision that does not command a majority on its reasoning, the D.C. Circuit vacates the preliminary injunction and remands the case to the D.C. District Court to address the other challenges to the execution protocol that the prisoners have raised.

6/29: The U.S. Supreme Court declines to review the D.C. Circuit’s opinion in the execution protocol case.


Timeline: Second Injunction

7/13 a.m.: The D.C. District Court issues a second preliminary injunction temporarily halting the executions of Daniel Lee, Wesley Purkey, Dustin Honken, and Keith Nelson, finding that on the limited record then before it, the prisoners had demonstrated a substantial likelihood that they will succeed in their claim that executing them with pentobarbital violates the Eighth Amendment’s prohibition against cruel and unusual punishments. It does not address the other claims the prisoners have raised.

7/13 p.m.: The D.C. Circuit denies the motion filed by federal prosecutors to stay enforcement of the district court injunction and sets an expedited briefing schedule for the prosecutors’ appeal of the district court’s ruling.

7/14, 2:30 a.m.: By a 5-4 vote, the U.S. Supreme Court grants the federal prosecutors’ motion to vacate the second district court injunction.

7/14: Lee is executed.


Timeline: Third Injunction

7/15 a.m.: The D.C. District Court grants a third preliminary injunction, temporarily halting the executions of Wesley Purkey, Dustin Honken, and Keith Nelson, finding that the federal execution protocol violates provisions of the Food, Drug, and Cosmetics Act that prohibit the dispensing of controlled substances without a valid prescription. The court denies an injunction on the remainder of the prisoners’ claims.

7/15 p.m.: The D.C. Circuit once again denies a motion filed by federal prosecutors to stay enforcement of the district court injunction and sets an expedited briefing schedule for the prosecutors’ appeal of the district court’s ruling.

7/16, 2:45 a.m.: The U.S. Supreme Court vacates the third district court injunction.

7/16: Purkey is executed.


Timeline: Fourth Injunction Request

7/16: Honken asks the D.C. District Court to stay his execution so he can litigate his cross-appeal of the portions of the third preliminary injunction motion the district court had denied.

7/16: The district court denies Honken’s request for a stay of execution pending his cross-appeal.

7/17: The D.C. Circuit Court denies Honken’s request for a stay of execution pending his cross-appeal.

7/17: Honken is executed.


Daniel Lewis Lee (Executed at 8:07 a.m. on July 14)

Lee v. Watson (Indiana)

12/5/19: The U.S. District Court for the Southern District of Indiana stays Lee’s execution to decide the merits of his claims of ineffective assistance of counsel and newly discovered evidence.

12/6/19: The U.S. Court of Appeals for the Seventh Circuit vacates the Indiana district court stay.

3/20: The Indiana federal district court reaches the merits of Lee’s ineffective assistance claim and denies relief.

6/26: The district court denies Lee’s motion to alter or amend its March 20 ruling denying relief.

7/10: The Seventh Circuit affirms the district court’s denial of relief.

7/13: Lee files a petition for writ of certiorari seeking review of the Seventh Circuit’s ruling and an application for stay of execution.

7/14, 2:30 a.m.: The U.S. Supreme Court denies his cert petition and stay application.


Lee v. United States (Arkansas)

12/6/19: The U.S. District Court for the Eastern District of Arkansas stays Lee’s execution pending resolution of a case in the U.S. Supreme Court that could affect the consideration of an ineffective assistance of counsel claim Lee is raising in his case.

6/1/20: The U.S. Court of Appeals for the Eighth Circuit vacates the Arkansas district court stay, but delays issuance of the mandate, leaving the stay temporarily in effect.

7/2: Citing the COVID-19 pandemic, Lee files a motion in the Arkansas district court to modify his execution date.

7/10
: The Arkansas district court denies Lee’s motion.

7/14: The government requests the immediate issuance of the mandate in the Eighth Circuit case dissolving the 12/6/19 stay.

7/14: Lee opposes the government’s request to accelerate the issuance of the mandate, asking the Eighth Circuit to decide his timely filed petition for rehearing en banc.

7/14: The Eighth Circuit grants the government’s request and issues the mandate.

7/14: Without notice to defense counsel and before counsel can seek review in the U.S. Supreme Court, the Bureau of Prisons executes Lee.


Peterson v. Barr (victims’ family members lawsuit, Indiana)

7/7: Family members of the victims move to intervene in Hartkemeyer v. Barr, a lawsuit brought by Purkey’s religious adviser in the U.S. District Court for the Southern District of Indiana, seeking to postpone the executions until after the COVID-19 pandemic so they can attend the execution without placing their lives and health at risk.

7/8: The district court denies the motion to intervene but orders that a new lawsuit be docketed to address the family members’ claims.

7/10: The district court issues a preliminary injunction in the family members’ lawsuit, now named Peterson v. Barr.

7/12: The U.S. Court of Appeals for the Seventh Circuit vacates the preliminary injunction.

7/13: The victims’ family members ask the U.S. Supreme Court to stay the Seventh Circuit’s order vacating the preliminary injunction. (Peterson v. Barr)

7/14, 2:30 a.m.: The Supreme Court denies the victims’ family members’ stay request.


Lee v. Barr (Indiana)

7/12: Lee files suit in the U.S. District Court for the Southern District of Indiana based on his absence of access to counsel during the COVID-19 pandemic.

7/13: The federal district court dismisses Lee’s suit.


Lee v. Barr (D.C. District Court)

7/14: Lee asks for an immediate ruling on his supplemental claims and a preliminary injunction based upon the government’s attempt to execute him at 4 a.m. He is executed before the court can rule.

7/15: Counsel for Lee file an emergency motion for preservation of evidence.

7/15: The district court grants the motion for preservation of evidence.


Wesley Ira Purkey (Executed at 8:19 a.m. on July 16, 2020)

Competency to be executed claim

11/26/2019: Purkey’s lawyers file suit in federal district court in Washington, D.C. arguing that he is incompetent to be executed because the combined effects of schizophrenia, traumatic brain injuries, and dementia from Alzheimer’s disease have left him incompetent to be executed.

7/15/2020 a.m.: The U.S. District Court for the District of Columbia grants Purkey a preliminary injunction, finding that, on the record before the court, his counsel have presented a meritorious claim that he is incompetent to be executed. The court also orders Purkey to show cause why the case should not be transferred to the Southern District of Indiana.

7/15: Federal prosecutors ask the U.S. Court of Appeals for the District of Columbia Circuit to stay or vacate the preliminary injunction.

7/15: Federal prosecutors also ask the U.S. Supreme Court to stay or vacate the preliminary injunction.

7/15 p.m.: The U.S. Court of Appeals for the District of Columbia Circuit declines to vacate the injunction.

7/16, 2:45 a.m.: By a 5-4 vote, the Supreme Court vacates the preliminary injunction.

7/16: Responding to prosecutors’ assertion that he should have filed his claim as part of a habeas corpus petition, Purkey files a stay motion in Indiana federal district court along with a habeas petition on his incompetency to be executed claim.

7/16: The district court temporarily stays Purkey’s execution to consider the motion.

7/16, 3:35 a.m. Central (4:35 a.m. Eastern): Purkey files an emergency application in the Seventh Circuit for a stay of execution pending resolution of his competency claim.

7/16: The district court denies Purkey’s stay motion.

7/16, 6:58 Central (7:58 a.m. Eastern): Purkey files a Motion for Stay of the July 16, 2020 Execution While Pending Appeal in the Seventh Circuit.

7/16, 8:19 a.m.: Without notice to counsel, the Federal Bureau of Prisons executes Purkey.

7/16, 9:31 a.m. Central (10:31 a.m. Eastern): The Seventh Circuit issues an order saying: “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.”


Purkey v. United States (Indiana)

7/2: U.S. Court of Appeals for the Seventh Circuit decides a pending habeas corpus appeal in Purkey’s case and rules that no procedural mechanism exists for it to review his claims. However, the court temporarily stays the execution until the court can conclude its proceedings.

7/11: Federal prosecutors ask the U.S. Supreme Court to vacate the stay issued by the Seventh Circuit.

7/15: In a 5-4 decision, the Supreme Court grants the government’s request to vacate the stay issued by the Seventh Circuit.

7/15: Purkey files a motion for stay of execution and petition for certiorari seeking review of the Seventh Circuit’s decision.

7/16, 2:45 a.m.: The Supreme Court denies Purkey’s motion for stay of execution and petition for writ of certiorari.


Hartkemeyer v. Barr (Indiana)

7/2: Rev. Dale Hartkemeyer, Purkey’s Buddhist religious advisor, files suit seeking a preliminary injunction delaying Purkey’s execution until after the COVID-19 pandemic. The suit alleges that the execution violates the free exercise clause of the First Amendment by requiring him to choose between his religious duty to minister to Purkey at his execution and preserving his health and life during the coronavirus pandemic.

7/2: Father Mark O’Keefe, Honken’s Roman Catholic religious advisor, files a motion to intervene in the lawsuit.

7/8: The district court grants Father O’Keefe’s motion to intervene.

7/14: The district court denies the motion for preliminary injunction.

7/15: The Seventh Circuit denies the spiritual advisors’ requests for a stay of execution pending appeal.

7/16, 2:45 a.m.: The Supreme Court denies the spiritual advisors’ requests for a stay of execution.


Dustin Lee Honken (Executed at 4:36 p.m. on July 17, 2020)

United States v. Honken (Iowa)

7/8: Honken files a motion in the U.S. District Court for the Northern District of Iowa seeking to declare his execution date null and void and to reset or modify the execution date in light of the COVID-19 pandemic.

7/14: The district court denies Honken’s motion.


Honken v. Barr (Indiana)

7/3: Honken files a suit in the U.S. District Court for the Southern District of Indiana arguing that the Bureau of Prisons’ refusal to allow his religious advisor in the execution chamber violates the 1st Amendment and the Religious Freedom Restoration Act.

7/15: The district court orders Honken to show cause why his claim regarding his religious adviser’s presence in the execution chamber hasn’t been rendered moot by the Bureau of Prisons agreement to grant Honken’s request.


Sources

*Links to case dock­ets are pro­vid­ed where avail­able. For US Supreme Court cas­es, the offi­cial Supreme Court dock­et is linked. For oth­er fed­er­al cas­es, links are pro­vid­ed to cas­es list­ed in the RECAP data­base when avail­able https://​www​.courtlis​ten​er​.com/​recap since the PACER fed­er­al court doc­u­ment sys­tem requires reg­is­tra­tion and some­times pay­ment. The RECAP data­base is crowd­sourced, so it may not have updates in real time.