With Litigation Pending in U.S. Supreme Court, Federal Government Issues Four Death Warrants

With a petition for review pending before the U.S. Supreme Court on the legality and constitutionality of the federal execution protocol, U.S. Attorney General William Barr on June 15, 2020 set execution dates for four federal death-row prisoners, including three who are involved in the pending case. The warrants scheduled three executions over a five-day period in July and a fourth execution in late August. No federal executions have been carried out since 2003, and the five execution dates that had been set for December 2019 and January 2020 were halted by litigation related to the proposed method of execution.

The prisoners’ appeal of a federal appellate court decision vacating an injunction against the use of the execution protocol is still pending before the U.S. Supreme Court.

The four prisoners scheduled for execution are Daniel Lewis Lee (July 13), Wesley Ira Purkey (July 15), Dustin Lee Honken (July 17), and Keith Dwayne Nelson (August 28). All but Nelson had previously been scheduled for execution in December or January. In its news release announcing the execution dates, the Department of Justice indicated it had selected for execution four prisoners “who were convicted of murdering children,” a crime that is typically left to the states to punish.

The news release described the decision of the U.S. Court of Appeals for the D.C. Circuit that vacated a lower injunction against executions as having “clear[ed] the way for the federal government to resume capital punishment after a nearly two-decade hiatus.” The release omitted any reference to the continuing litigation over the legality of the prior death warrants. It also asserted that the four prisoners “have received full and fair proceedings under our Constitution and laws. We owe it to the victims of these horrific crimes, and to the families left behind, to carry forward the sentence imposed by our justice system.”

In fact, the victims’ family in at least one of the cases has long opposed carrying out the death sentence in their case and litigation remains active in several of the cases. Attorneys for the prisoners said that the cases are emblematic of systemic problems in the administration of the federal death penalty, raising issues of junk science, mental illness, ineffective representation, lack of appellate review, and arbitrariness.

In a statement, Lee’s attorney, Ruth Friedman, decried the arbitrariness of Lee’s death sentence. “Mr. Lee’s indisputably more-culpable co-defendant received a life sentence, in large part because the government relied on junk science and false evidence to secure both Mr. Lee’s conviction and his death sentence.” She also noted that “two federal judges, both appointed by Republican presidents, found on two different grounds that Danny Lee’s death sentence was unfairly obtained and should be invalidated, but procedural obstacles prevented both from granting relief.” Lee’s trial prosecutor, trial judge, and the victims’ family all have publicly spoken out against his execution.

In addition to the systemic challenge to the federal execution protocol, litigation has been under way for months in the case of Wesley Purkey on his competency to be executed. Purkey’s current defense counsel, Rebecca Woodman, said in a statement that, as a result of “[t]he devastating combined effects of schizophrenia, Alzheimer’s disease, dementia, and a lifetime of trauma,” Purkey is “unable to comprehend why the federal government plans to execute him. While he long ago accepted responsibility for the crime that put him on death row, he no longer has any rational understanding of why the government plans to execute him.” The Eighth Amendment prohibits the execution of a person who lacks the capacity to rationally understand the reason for his or her execution, and a recent U.S. Supreme Court decision, Madison v. Alabama, declared that this protection includes people whose mental capacity is impaired by dementia. “The courts have not had time to resolved Wes’s claims, yet the government now seeks to rush forward with his execution. No execution should proceed unless and until the question of Wes’s competency is resolved,” Woodman said.

A statement by Shawn Nolan, attorney for Dustin Lee Honken, also noted systemic flaws in his case, including federal overreach in a state that has not had the death penalty for over 50 years. “Mr. Honken’s death sentence was imposed for murders committed in the state of Iowa, which abolished the death penalty in 1965, and which could have prosecuted Mr. Honken in state court. Additionally, his trial and sentencing were plagued by misconduct and the ineffectiveness of counsel, who failed to adequately inform Mr. Honken’s jury of his severely dysfunctional background or his resultant mental health problems. He was then denied full and fair review of these defects in federal habeas proceedings,” Nolan said.

Nelson’s defense counsel, Dale Baich, said that Nelson’s case, too, was plagued with ineffective counsel who failed to investigate and present to the jury significant mitigating evidence. “Because of his counsel’s deficient performance, the jury never heard key evidence about the significant trauma and extreme neglect Mr. Nelson experienced as child, including significant brain damage suffered as a newborn, repeated childhood sexual and physical abuse, and a multigenerational family history marked with severe mental illness,” Baich said. “Mr. Nelson’s death sentence is the result of a proceeding that denied him constitutionally guaranteed protections and reveals another deep flaw in the federal death penalty system.”

In April, a panel of the U.S. Court of Appeals for the District of Columbia Circuit issued a fractured ruling lifting the injunction that had blocked the federal government from carrying out executions. The prisoners argued that the execution protocol promulgated by the Department of Justice in July, which established a uniform one-drug lethal-injection process using pentobarbital, violated the Federal Death Penalty Act. Among other concerns, the prisoners said the plain language of the FDPA required that federal executions be carried out “in the manner prescribed by the state” in which the prisoner was convicted. The prisoners sought an en banc rehearing before the full appeals court, but the court denied the request. Lee, Purkey, Honken, and Alfred Bourgeois (who also has a petition pending in federal district court seeking to bar his execution because of intellectual disability) have filed a petition in the U.S. Supreme Court seeking review of that decision. That petition is now pending before the U.S. Supreme Court.

Correctional officials had previously cautioned the Department of Justice against scheduling executions in quick succession, but—as with the prior execution attempt—the new schedule sets three dates in a single week, with just one month of notice. Allen Ault, former chief of the Justice Department’s National Institute of Corrections, wrote that the original federal execution schedule—which also opened with three executions in five days and set a total of five dates over a five-week period—“causes an extended disruption to normal prison operations and precludes any attempt to return to normalcy following an execution. It also prevents any meaningful review by execution team members and other officials to address problems or concerns in the execution process. That increases the risk that something could go horribly wrong in the next execution. And if a ‘routine’ execution is traumatizing for all involved, a botched one is devastating.”

In a statement echoing the July 2019 announcement of the resumption of federal execution, Attorney General Barr claimed, “We owe it to the victims of these horrific crimes, and to the families left behind, to carry forward the sentence imposed by our justice system.” In fact, Earlene Branch Peterson, the mother and grandmother of the victims in Daniel Lewis Lee’s case, issued a personal plea for clemency for Lee, saying, “Yes, Daniel Lee damaged my life, but I can’t believe taking his life is going to change any of that. I can’t see how executing Daniel Lee will honor my daughter in any way. In fact, it’s kind of like it dirties her name, because she wouldn’t want it and I don’t want it.” In addition, 175 family members of murder victims signed a letter to Barr and President Trump calling for an end to the death penalty because “[I]t exacerbates the trauma of losing a loved one and creates yet another grieving family. It also wastes many millions of dollars that could be better invested in programs that actually reduce crime and violence and that address the needs of families like ours.”