Federal exe­cu­tion updates

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.