Wesley Purkey Execution Temporarily Halted as Challenges Pending on Mental Competency, Health Danger to Religious Advisor, and Ineffective Representation

Lawyers for Wesley Purkey (pictured), the second of three federal death-row prisoners scheduled to be executed during the week of July 13, are seeking to halt his execution, arguing that mental illness and dementia have left him mentally incompetent. As Purkey challenges the constitutionality of his execution, his spiritual advisor, Rev. Dale Hartkemeyer, is seeking to move back the execution until the COVID-19 pandemic subsides. Hartkemeyer’s lawsuit asserts that conducting the execution during the pandemic infringes on his rights as an execution witness by forcing him to either betray his religious obligation to minister to Purkey in his final hours or to risk his life and health by travelling to Terre Haute, Indiana and participating in the execution during a raging pandemic.

As of 4:30 p.m. Eastern on July 15, Purkey’s scheduled execution date, the U.S. District Court for the District of Columbia had granted a preliminary injunction halting his execution based on his claim of mental incompetency and a second injunction halting the three remaining executions based on prisoners’ challenges to the federal execution protocol. Federal prosecutors have appealed both orders. Department of Justice lawyers are also seeking to lift a temporary stay of execution issued by the U.S. Court of Appeals for the Seventh Circuit, which declined on procedural grounds to review Purkey’s claims of ineffective representation, but found the ineffectiveness claim sufficiently worrisome and the procedural issues sufficiently novel that it delayed finalizing its action until Purkey could seek further review of the issues.

Purkey was one of five death-row prisoners whose executions had been scheduled for December 2019 and January 2020 when the Department of Justice announced its new execution protocol in June 2019. On November 26, 2019, his lawyers filed a complaint in the federal district court in Washington, D.C., alleging that a combination of Alzheimer’s disease, schizophrenia, and traumatic brain injuries “render [Purkey] unable to rationally understand the reason the United States seeks to execute him,” making him incompetent to be executed. Under U.S. Supreme Court precedent, executing a person who, because of conditions such as mental illness or dementia, “cannot rationally understand his punishment, or the reason for it” constitutes cruel and unusual punishment. The federal district court had not ruled on that challenge because his December execution was stayed by an injunction in a separate challenge to the government’s execution protocol.

Before 8:30 a.m. Eastern on July 15, the federal district court granted an injunction on his mental competency claim. The court found that Purkey’s proffered evidence of multiple traumatic brain injuries, schizophrenia, complex-post traumatic stress disorder, severe mental illness, and progressive dementia had “made a substantial showing of incompetence.” Three leading disability rights organizations, the National Alliance on Mental Illness, Mental Health America, and the Treatment Advocacy Center, have called on Attorney General Bill Barr to halt Purkey’s execution because of his incompetency.

A separate lawsuit seeks to postpone Purkey’s execution until after the COVID-19 pandemic. When the U.S. Department of Justice announced Purkey’s execution date in June 2020, his spiritual advisor, Rev. Dale Hartkemeyer, filed a separate suit seeking a stay. Hartkemeyer, a 68-year-old Buddhist priest, has visited Purkey monthly since January 2009 as his spiritual guide. A suit filed on Hartkemeyer’s behalf by the ACLU says that his age and a lung condition place him at high risk from COVID-19. “I’m being asked to make an impossible decision — violate my religious beliefs or risk my health and life by attending an execution that could become a ‘super-spreader’ event for COVID-19,” he wrote in a blog post.

Hartkemeyer wrote: “It’s vital that I be there, as Wes’s priest, to ensure this peaceful transition from life to death during his most dire moment of distress — his ultimate crisis — as he sits at the threshold of death. I will chant from behind a plexiglass barrier to ensure his peace of mind while passing and, through my physical presence, serve as a spiritual reminder to Wes of all the religious lessons I have taught him as he passes on from this life. This is my sacred duty.” Hartkemeyer’s suit was joined by Father Mark O’Keefe, a Catholic priest who is serving as spiritual advisor to Dustin Honken, who is scheduled for execution on July 17. A federal district court in Indiana denied their motion on July 14, and that decision has been appealed to the U.S. Court of Appeals for the Seventh Circuit.

For updates on the status of the appeals, see DPIC’s Federal Execution Updates page.