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.”