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.

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Sources

Michael Balsamo, Priest sues to stop fed­er­al exe­cu­tion over coro­n­avirus risk, Associated Press, July 2, 2020.

For fil­ings and rul­ings in each of Purkey’s suits, and the oth­er fed­er­al death-penal­ty cas­es, vis­it DPIC’s Federal Execution Updates page.