U.S. Government Hurriedly Executes Wesley Purkey After Overnight Rulings by U.S. Supreme Court Vacate Two Injunctions and a Stay of Execution

For the sec­ond time in three days, the United States gov­ern­ment has exe­cut­ed a pris­on­er after a 5 – 4 overnight deci­sion of the U.S. Supreme Court short-cir­cuit­ed judi­cial review of sig­nif­i­cant legal claims and after the orig­i­nal death war­rant set­ting his exe­cu­tion date had expired.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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