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 12^th and sched­uled the exe­cu­tions of Corey Johnson (January 14^th) and Dustin Higgs (January 15^th) 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 25^th 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 29^th 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 24^th, 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 11^th. 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 11^th. 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 25^th 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 19^th 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 19^th. 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 7^th 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 19^th, 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 19^th.

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’ 8^th Amendment claims but denied the pris­on­ers’ stay motion that was based on the 8^th 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 21^st.

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 26^th. (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.