Federal exe­cu­tion updates

Last Updated: January 16, 2021 1:35am.

January 2021 Scheduled Executions

The federal government has rescheduled the execution of Lisa Montgomery for January 12th and scheduled the executions of Corey Johnson (January 14th) and Dustin Higgs (January 15th) for the same week.

Prisoner Coronavirus Litigation

Federal prisoners Patrick R. Smith and Brandon S. Holm filed a class-action lawsuit in an Indiana federal district court on November 25th to halt the December 2020 federal executions. The named plaintiffs are non-death row prisoners serving their sentences in the Terre Haute Federal Correctional Complex (“FCC Terre Haute”), the same complex that houses federal death row and where executions are conducted. The class-action suit argues that the prisoners incarcerated at FCC Terre Haute are being put at unnecessary and life-threatening risk by the convergence of more than a hundred people for each federal execution during a time of soaring coronavirus infections, hospitalizations, and deaths. Though the district court did not halt the December executions, it issued a limited preliminary injunction regarding the January 2021 executions. The January 7, 2021 order requires the federal government to take several precautions to prevent the spread of the coronavirus during the executions. 1/15 UPDATE: The prisoners have filed an emergency motion asking the court to stop any further executions because of violations of the court’s ordered coronavirus precautions. 1/15 UPDATE 2: The court has given prison officials until 7pm Eastern “to show cause why they should not be held in contempt for violating the injunction.” 1/15 UPDATE 3: The government has filed a response claiming that officials did not violate the mask requirements of the court’s order. 1/15 UPDATE 4: The prisoners have filed a reply. 1/15 8:12pm UPDATE: The court declined to stop executions but ordered that the two prison officials who removed their masks in the execution chamber “shall not have close contact with any FCC Terre Haute personnel, beginning immediately and for the remainder of the officials’ time at FCC Terre Haute in January 2021.”

Dustin Higgs (EXECUTED January 16)

1/16 12am UPDATE: The Maryland federal district court has designated Indiana as the state governing the manner of execution, finalizing the process set in motion by the Supreme Court’s decision.

1/15 11:50pm UPDATE: The Fourth Circuit has remanded the case to the Maryland federal district court for the designation of Indiana.

1/15 11pm UPDATE: The Supreme Court has lifted the Fourth Circuit’s stay of execution. Justices Breyer and Sotomayor wrote dissenting opinions. The Court’s decision reverses the Maryland district court’s December 29th ruling and orders the case to be remanded “for the prompt designation of Indiana” as the state governing the manner of Higgs’ execution.

Modification of Sentencing Order: On August 4, 2020, the federal government requested that the Maryland federal district court that had sentenced Higgs to death amend its sentencing order to allow Higgs to be executed in manner authorized by the state in which Higgs is confined, Indiana. The original sentencing order provided for Higgs’ execution in the manner prescribed by Maryland law, but Maryland has since abolished the death penalty. While the motion was pending in district court, the federal government announced Higgs’ execution date. On December 29, the district court denied the government’s motion, holding that it did not have the authority to amend Higgs’ sentencing order as requested. The government appealed to the Fourth Circuit, but the court set oral argument for after the scheduled execution date, and it denied the government’s request to expedite argument because of the novelty of the complex issue. If the order stands, the government will not be able to execute Higgs as scheduled. The government is requesting certiorari review in the U.S. Supreme Court. On January 13, Higgs filed a brief in opposition to the government’s petition for certiorari. The same day, the Fourth Circuit granted a stay of execution. On January 14, the government filed a reply to Higgs’ brief in opposition. 1/15 UPDATE: The government has asked the Supreme Court to lift the Fourth Circuit’s stay. 1/15 UPDATE 2: Higgs has filed a response to the government’s stay application.

Brady and Defective Indictment Challenge: Higgs filed a petition for habeas corpus relief in an Indiana federal district court because of new evidence to support his claim that the government withheld crucial exculpatory evidence and that his indictment failed to allege essential elements of a capital offense. He requested a stay of execution on December 24th, but the district court denied the stay request on January 12. Higgs is appealing this denial to the Seventh Circuit federal court of appeals. Higgs filed a motion to stay his execution pending the disposition of his appeal. 1/15 UPDATE: The government has filed a response to the stay motion, and Higgs has replied. 1/15 UPDATE 2: The Seventh Circuit has affirmed the district court’s denial of a stay of execution.

New Execution Regulations: Along with the Federal Habeas Corpus Project and three death row prisoners, Higgs is challenging revisions to the federal regulations that govern the conduct of executions. The new regulations allow the Attorney General to vary from execution regulations when s/he determines it is “necessary to comply with applicable law.” The regulations also allow the setting of execution dates without judicial involvement and the delegation of tasks to any Department of Justice officer or employee. Higgs argues that the revisions violate the separation of powers and the Administrative Procedures Act. The case remains pending before the Washington, D.C. federal district court. 1/13 UPDATE: The district court granted limited injunctive relief. Since the government currently states that it has no plans to vary from execution regulations, the court has required the government to provide the court and Higgs 24 hours notice if it does decide to use the powers included in the new regulations.

Due Process Challenge: On August 16, 2016, Higgs filed a petition for habeas corpus relief in an Indiana federal district court challenging his death sentence because it was based in part on a conviction for using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). Higgs argued that the U.S. Supreme Court had found related provisions of this statute unconstitutionally vague, and his convictions violated his due process rights. The district court denied this challenge because it held that Higgs did not use the correct procedure to raise the claim. Higgs’ appeal to the Seventh Circuit federal court of appeals was pending when the federal government announced his execution date. On January 11, 2021, the Seventh Circuit affirmed the district court’s denial of Higgs’ claim.

COVID19 & Execution Protocol: Higgs challenged the government’s execution protocol based on his likelihood of suffering excruciating pain. Higgs contracted the coronavirus during the surge in cases following the last round of federal executions. Higgs argued that the combination of his coronavirus infection, heart disease, and severe asthma heighten the risk that he will suffer flash pulmonary edema during his execution that would leave him in excruciating pain while still sensate. Higgs requested a preliminary injunction in DC federal district court. The court granted the request for Higgs and Johnson, and the government appealed. 1/13 UPDATES: In the DC Circuit federal court of appeals, the government filed a motion to stay or vacate the injunction. Johnson and Higgs responded. 1/14 UPDATES: By a 2-1 vote, a panel of the DC Circuit vacated the preliminary injunction. Johnson and Higgs sought rehearing en banc and a stay, the government opposed, and the DC Circuit denied en banc rehearing. Johnson and Higgs sought a stay in the DC Circuit in anticipation of filing a petition for certiorari review. The stay request was denied. Higgs and Johnson have asked the U.S. Supreme Court for a stay of execution, the government has filed a brief in opposition, and the Supreme Court denied the stay application.

Corey Johnson (EXECUTED January 14)

1/14 7pm UPDATE: Higgs and Johnson have asked the U.S. Supreme Court for a stay of execution on their as-applied Eighth Amendment claim that the government’s execution protocol will cause them excruciating pain due to their active coronavirus infections. 1/14 8pm UPDATE: The government has filed a brief in response. 1/14 10:05pm UPDATE: Higgs and Johnson have filed a reply. The U.S. Supreme Court has denied the stay application.

1/14 5pm UPDATE: Johnson has asked the U.S. Supreme Court for a stay of execution based on the intellectual disability and First Step Act claims described below. 1/14 6pm UPDATE: The Constitution Project has asked for permission to file an amicus brief. 1/14 8pm UPDATE: The government has filed a brief in response. 1/14 9:30pm UPDATE: Johnson has filed a reply. 1/14 10:05pm UPDATE: The U.S. Supreme Court has denied the stay application.

Intellectual disability: Johnson asked a Virginia federal district court to grant relief from his death sentence because as the earliest federal death row prisoner who raised an intellectual disability claim, his counsel did not understand how to investigate and present the claim and hired an unqualified expert. He also argues that the federal courts applied outdated standards that do not comport with the Eighth Amendment. The federal district court dismissed Johnson’s case without prejudice because it ruled that Johnson needed permission from the Fourth Circuit federal court of appeals before filing a successive 2255 petition. Johnson is appealing that ruling and asking for a stay of execution. He is also separately asking the Fourth Circuit for authorization in case it agrees with the district court that permission to file a successive 2255 petition is necessary. On January 12, the Fourth Circuit denied Johnson’s requests to stay his execution. 1/13 UPDATE: Johnson has filed a petition for rehearing en banc. 1/14 UPDATE: The government has filed a response to Johnson’s petition. 1/14 UPDATE 2: The Fourth Circuit has denied rehearing en banc, and Johnson has filed a motion for a stay of execution. 1/14 UPDATE 3: The Fourth Circuit has denied Johnson’s motion for a stay of execution.

First Step Act: On August 19, 2020, Johnson asked a Virginia federal district court to reduce his sentence under the First Step Act because his death sentence was based in part on convictions related to drug trafficking. Johnson argued that his convictions for taking part in a “continuing criminal enterprise” are covered offenses eligible for reconsideration under the First Step Act. The district court denied Johnson’s motion for reconsideration on November 19, 2020, and Johnson appealed to the Fourth Circuit federal court of appeals and asked the court to stay his execution. On January 12, the Fourth Circuit denied Johnson a stay of execution. 1/13 UPDATE: Johnson has filed a petition for rehearing en banc. 1/14 UPDATE: The government has filed a response to Johnson’s petition. 1/14 UPDATE 2: The Fourth Circuit has denied rehearing en banc, and Johnson has filed a motion for a stay of execution. 1/14 UPDATE 3: The Fourth Circuit has denied Johnson’s motion for a stay of execution.

COVID19 and Execution Protocol: Johnson has asked the DC federal district court to issue a preliminary injunction halting his execution because his infection with COVID19 makes it likely that he will suffer excruciating pain during his execution. Johnson provided expert testimony that COVID19 has compromised his lungs and therefore, he is likely to experience a sensation of drowning and suffocating early in the execution process before the pentobarbital can have its full anesthetizing effect. The court has granted the request for both Johnson and Higgs, and the government is appealing. 1/13 UPDATES: In the DC Circuit federal court of appeals, the government filed a motion to stay or vacate the injunction. Johnson and Higgs have responded. 1/14 UPDATE: By a 2-1 vote, a panel of the DC Circuit has vacated the preliminary injunction. 1/14 UPDATE 2: Johnson and Higgs have sought rehearing en banc and a stay, and the government has opposed. 1/14 UPDATE 3: The DC Circuit denied en banc rehearing, and Johnson and Higgs have sought a stay in anticipation of filing a petition for certiorari review in the U.S. Supreme Court. 1/14 6pm UPDATE: The DC Circuit denied the stay request.

Modification of sentencing order: Johnson is challenging the Virginia federal district court’s modification of its original order about the manner in which his death sentence would be carried out. The district court had originally ordered that the execution could occur at a Virginia state facility under the supervision of the U.S. Marshals Service and that Johnson would be allowed to choose between lethal injection and electrocution. The government requested that the sentencing order be modified to allow his execution at the Terre Haute Federal Correctional Complex and to specify that Johnson would be executed via lethal injection. The court granted this amendment in November 2005, but Johnson’s execution was enjoined in 2006 by litigation about the federal government’s execution protocol. This injunction was lifted in September 2020. Johnson asked the court to vacate its amended order because the court did not have legal authority to modify its original order specifying the manner of his execution. The district court denied the motion to vacate, and Johnson is appealing to the Fourth Circuit federal court of appeals. 1/13 UPDATE: The government has filed its opposing brief in the Fourth Circuit. 1/14 UPDATE: Johnson has filed a reply brief and a motion for stay of execution. 1/14 UPDATE 2: The Fourth Circuit has denied Johnson’s stay motion. 1/14 UPDATE 3: Johnson has filed a petition for rehearing en banc. 1/14 7:25 UPDATE: The Fourth Circuit has denied Johnson’s petition.

Lisa Montgomery (EXECUTED January 13)

Competency to be executed: On January 7, Montgomery’s lawyers requested that her execution be halted because she is incompetent to be executed. Montgomery’s lawyers argue that severe mental illness and brain damage prevent her from having a rational understanding of her upcoming execution. Montgomery’s team filed a petition for habeas corpus and motion for stay of execution in an Indiana district court. The government has responded to her petition. Late January 11, the district court granted a stay of execution to allow a hearing on Montgomery’s claims. The government has appealed and asked the Seventh Circuit federal appeals court to vacate the stay. 1/12 UPDATE: The Seventh Circuit has vacated the lower court’s stay. 1/12 UPDATE 2: Montgomery has asked the U.S. Supreme Court for a stay of execution.1/12 UPDATE 3: Montgomery has filed a supplement to her stay of execution application, and the government has filed a response in opposition. 1/13 UPDATE: With three Justices dissenting, the Supreme Court denied Montgomery a stay.

Federal regulatory challenge: Montgomery has challenged the government’s decision to set her execution date for January 12^th, 2021 while she still had an active stay of execution that didn’t expire until December 31, 2020. Her lawyers argue that federal regulations require the government to wait until the stay expires to set a new execution date. The Washington, D.C. federal district court originally granted relief on this claim, but the DC Circuit U.S. Court of Appeals reversed the district court’s ruling. Montgomery is asking the U.S. Supreme Court to review that ruling and stay her execution. 1/12 UPDATE: The Supreme Court denied the petition for certiorari review and motion for a stay.

Federal Death Penalty Act challenge: After the DC Circuit reversed the grant of relief on Montgomery’s federal regulatory challenge, Montgomery asked the district court to rule on her remaining claim that the federal government violated the FDPA by failing to provide the notice required under Missouri law in setting her execution date. (The FDPA requires federal executions to be conducted in the same manner as that of the state in which the federal trial occurred.) The district court denied relief on this claim and denied a stay of execution. Montgomery appealed this decision in the DC Circuit and asked for a stay of execution pending appeal. A panel of the DC Circuit initially denied this request, but the full court reconsidered and granted the stay late on January 11th. The government is asking the U.S. Supreme Court to overturn this ruling. 1/12 UPDATE: The Supreme Court granted the government’s request and vacated the stay.

Violation of Original Sentencing Order: Montgomery asked the Missouri district court in which she was tried to enforce its original judgment. The sentencing order stated that her execution would be stayed on appeal pending further order of the court. However, the government did not seek an order of the court before setting her execution date. The district court rejected Montgomery’s motion to enforce the judgment, and Montgomery appealed. On January 12, the Eighth Circuit federal court of appeals granted Montgomery a stay of execution pending appeal. 1/12 UPDATE 2: The government has asked the U.S. Supreme Court to vacate the stay. 1/12 UPDATE 3: Montgomery has opposed the government’s motion. 1/13 UPDATE: The Supreme Court granted the government’s motion to vacate the Eighth Circuit’s stay.

December 2020 Executions

On October 16, the federal government announced the scheduled executions of Lisa Montgomery (December 8) and Brandon Bernard (December 10). On November 20, the government announced that Alfred Bourgeois would be executed on December 11th. Lisa Montgomery has been granted a temporary stay, and her execution has been rescheduled for January 12, 2021.

Alfred Bourgeois (EXECUTED December 11)

Alfred Bourgeois argued that the federal government was constitutionally prohibited from executing him under Atkins v. Virginia and the Federal Death Penalty Act because of his intellectual disability. Although the federal appeal courts subsequently recognized that the federal judge who initially denied Bourgeois’ intellectual disability claim used an unconstitutional standard, they nevertheless declined to stop Bourgeois’ execution. Bourgeois challenged these decisions at the U.S. Supreme Court and sought a stay of execution to permit adjudication of his claim. His petition was supported by an amicus brief filed by The Constitution Project. At 6:40 p.m. on December 11, the Supreme Court denied Bourgeois’ petition for certiorari and application for a stay. Justice Sotomayor, joined by Justice Kagan, dissented.

Coronavirus Litigation

Federal prisoners Patrick R. Smith and Brandon S. Holm filed a class-action lawsuit in an Indiana federal district court on November 25th to halt the December executions. The named plaintiffs are non-death row prisoners serving their sentences in the Terre Haute Federal Correctional Complex (“FCC Terre Haute”), the same complex that houses federal death row and where executions are conducted. The class-action suit argues that the prisoners incarcerated at FCC Terre Haute are being put at unnecessary and life-threatening risk by the convergence of more than a hundred people for each federal execution during a time of soaring coronavirus infections, hospitalizations, and deaths. Documents in the case reveal that Orlando Hall’s spiritual adviser was diagnosed with COVID-19 shortly after Hall’s November 19th execution, six members of the Bureau of Prisons’ execution team were diagnosed with COVID-19 within a week of his execution, and two more members of the team were diagnosed with COVID-19 since then. On December 8, the district court denied the prisoners’ motion for a preliminary injunction.

On December 9, the prisoners asked for emergency discovery for COVID-19 contact tracing records about staff and execution team members who had tested positive for the coronavirus. The district court granted this request, requiring the records to be produced by December 15.

The documents revealed that eight members of the Hall execution team had tested positive for the coronavirus, at least five of whom were expected to participate in the December federal executions. At least 14 and perhaps as many as 29 federal death row prisoners in FCC Terre Haute subsequently tested positive for COVID-19, including Corey Johnson and Dustin Higgs, who are scheduled to be executed on January 14 and January 15, 2021.

Execution Protocol Litigation

Bernard and Bourgeois argued that the government violated the Federal Death Penalty Act by not giving the notice of execution date required under Texas law. On December 6, the D.C. federal district court ruled that the government had violated the FDPA but denied Bernard and Bourgeois’ motion for a preliminary injunction halting their executions. The court held that the prisoners had not demonstrated irreparable harm. Bernard and Bourgeois appealed the ruling and asked for emergency stays or a preliminary injunction pending appeal. On December 9, the U.S. Court of Appeals for the District of Columbia Circuit denied their requests and on December 10, the circuit court denied their motion for rehearing.

Brandon Bernard (EXECUTED December 10)

Brandon Bernard sought to halt his execution on the grounds that federal prosecutors intentionally withheld crucial evidence that undermined its theory of prosecution, in violation of his right to a fair trial and sentencing. The U.S. District Court for the Southern District of Indiana and the U.S. Court of Appeals for the Seventh Circuit declined to address his claim on procedural grounds. After the federal district court denied Bernard’s application for a stay of execution, he asked the Seventh Circuit for a stay. A group of twenty-three current and former prosecutors have filed an amicus brief in support of that application. On December 10, the appeals court denied Bernard’s motion.

Bernard separately raised a claim about this hidden evidence in federal post-conviction proceedings in Texas. A Texas federal district court and the U.S. Court of Appeals for the Fifth Circuit denied relief. Bernard filed a petition in the U.S. Supreme Court seeking review of his claim and asking for a stay of execution. On December 10, Alan Dershowitz and Ken Starr filed a last-minute supplement to Bernard’s stay motion announcing that they had joined Bernard’s legal team and seeking a 14-day stay of his execution to allow them to familiarize themselves with the case and file additional pleadings. Shortly before 8:30 p.m. on December 10, the Supreme Court denied the motion for a stay and the petition for certiorari. Justices Breyer, Kagan, and Sotomayor dissented, and Justice Sotomayor wrote a statement in dissent.

On December 7, Bernard asked for his sentence to be reduced under the federal First Step Act, arguing that the Texas federal district court had discretion to reduce his sentence from death to life imprisonment. The court denied this motion on December 9.

November 2020 Execution

The federal government scheduled the execution of Orlando Hall for November 19th. Hall’s execution was the first lame-duck execution for a federal crime in more than a century. The last lame-duck federal execution was January 25, 1889, during the first presidency of Grover Cleveland. Richard Smith, a member of the Chocktaw tribe, was executed in Arkansas for a murder committed in Indian Territory.

Orlando Hall (EXECUTED November 19)

Hall filed a petition for habeas corpus relief and a motion to stay execution in an Indiana federal district court. Hall argues that new evidence shows that racial bias infected his trial, confirming that Hall’s all-white jury was the result of racial discrimination and that the federal death penalty is disproportionately imposed on Black defendants like Hall. On November 17, the district court denied his stay motion. Hall is appealing the case to the Seventh Circuit Court of Appeals. On November 19, 2020, the NAACP Legal Defense and Educational Fund filed an amicus brief in support of Hall. The same day, the 7th Circuit denied a stay and affirmed the district court’s order. Hall has asked the U.S. Supreme Court to grant certiorari review and to stay his execution. The NAACP Legal Defense and Educational Fund has asked to file an amicus brief in support of Hall. The night of November 19, the Supreme Court denied the stay request and petition for certiorari.

On April 19, 2017, Hall filed a petition for habeas corpus relief in an Indiana federal district court challenging his death sentence because it was based in part on a conviction for using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). This petition was pending when the federal government announced his execution date on September 30, 2020. On November 14, 2020, the district court dismissed Hall’s petition. Hall appealed his case in the Seventh Circuit Court of Appeals and asked the court to stay his execution. On November 18, 2020, the Seventh Circuit summarily affirmed the district court’s judgment and denied Hall’s stay motion.

Hall asked the District of Columbia federal district court for a temporary restraining order and preliminary injunction based on claims that the federal government’s decision to schedule his execution without adequate notice during the coronavirus pandemic deprived him of meaningful access to counsel and the clemency process. Hall also argued that the government’s protocol violated the Federal Death Penalty Act because federal executions are not supervised by U.S. Marshals Service. On November 16, 2020, the District of Columbia district court denied his motion, and Hall appealed the case to the DC Circuit Court of Appeals. On November 18, 2020, the DC Circuit Court of Appeals denied an emergency stay and affirmed the district court’s order. Hall has asked the U.S. Supreme Court for a stay and has sought certiorari review. The government has filed a brief in opposition, and Hall has filed a reply. The night of November 19th, the Supreme Court denied the stay request and petition for certiorari.

Execution Protocol Litigation

11/19 updates:
Hall asked the DC federal district court to set aside the protocol and to stay his execution. The government opposed that request, and Hall replied. On November 19, the DC federal district court issued a stay of execution and set aside the federal execution protocol. The government appealed to the DC Circuit. The government asked the federal district court to stay its ruling halting the execution while the government appeals it. The district court denied this motion at approximately 9:25pm.

The government asked the DC Circuit to stay or vacate the district court’s ruling. Hall opposed this motion, and the government filed a reply.

The government also asked the U.S. Supreme Court to stay or vacate the district court’s ruling. The Supreme Court granted the government’s motion without waiting for the DC Circuit to rule. Three justices noted their dissent.

Hall filed a motion asking the federal district court to require the federal government to comply with Texas law. The motion argues that pursuant to the Federal Death Penalty Act, if the stay of execution remains in place until midnight, the government must abide my Texas’ notice requirements and reschedule the execution no sooner than 90 days after the expiration of the original execution date.

Late November 18, Orlando Hall and Brandon Bernard asked the U.S. Supreme Court to stay their executions. They argued that they are entitled to injunctive relief because they have shown that the use of pentobarbital would result in a substantial and increased risk of bodily harm and because courts have found that the federal execution protocol violates federal law.(Read the government’s response and Hall and Bernard’s reply.) The Supreme Court denied Hall and Bernard’s request after 9pm on November 19th.

11/18 update: On November 18, a panel of the DC Circuit Court of Appeals reversed the federal district court’s judgment dismissing the federal prisoners’ 8th Amendment claims but denied the prisoners’ stay motion that was based on the 8th Amendment. The court upheld the district court’s grant of partial summary judgment on the prisoners’ Food Drug and Cosmetic Act claim and upheld the district court’s denial of a permanent injunction on the claim. The court found that the federal government’s execution protocol is “’not in accordance with law’ to the extent that it allows the dispensation and administration of pentobarbital without a prescription and must be ‘set aside’ in that respect.”

Background: Orlando Hall, Brandon Bernard, and other federal death row prisoners are challenging several decisions by the District of Columbia federal district court denying relief on their execution protocol claims.

• On August 15, the District of Columbia federal district court dismissed the federal prisoners’ Eighth Amendment claims that the federal execution protocol would cause excruciating suffering. The court’s decision was based on the U.S. Supreme Court’s opinion vacating an earlier injunction in Lee v. Barr.
• On September 20, the District of Columbia federal district court granted summary judgment on federal death row prisoners’ claim that the execution protocol violated the Food Drug and Cosmetic Act, but the district court refused to grant the prisoners injunctive relief on this violation.
• In the same order, the district court granted summary judgment for the government on the rest of the prisoners’ claims, including a claim that the execution protocol violated the Federal Death Penalty Act.
• On November 3, the district court denied the prisoners’ motion to alter or amend its judgment.
  

All the plaintiffs in the execution protocol case appealed these decisions to the District of Columbia circuit court of appeals. In addition, Bernard and Hall sought stay of execution while the appeal was being considered.

September 2020 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 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 Holder 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 executions

The federal government 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 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 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 denied Nelson’s stay request to allow consideration of the district court’s dismissal of the prisoners’ 8^th 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) (9^th 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) (9^th 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 1^st 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.