WASHINGTON — The Trump administration is set to execute Daniel Lewis Lee on July 13 by lethal injection. If it happens, it’ll be the first time in nearly two decades that the federal government has carried out an execution.
Death row inmates and death penalty opponents have less than two weeks to convince a judge to intervene before Lee’s execution, the first of four that the Trump administration has scheduled for men convicted of murdering children. On Thursday, the American Civil Liberties Union filed a new lawsuit raising a novel argument — that at least one of the executions should be delayed because the coronavirus pandemic puts everyone involved in the lethal injection process at risk of exposure.
Rev. Seigen Hartkemeyer, a Zen Buddhist priest who has served as a spiritual adviser to Wesley Purkey, a death row inmate scheduled for execution on July 15, wrote in a blog post published by the ACLU on Thursday that he has a religious duty to be with Purkey. But Hartkemeyer said that because he has a history of lung illness and is 68 years old, he was being “asked to make an impossible decision.”
“The federal government’s decision to proceed with Wes’s execution burdens my religious freedom by forcing me to choose between performing my religious duties as a priest, and protecting my own life,” Hartkemeyer wrote. “Although Trump officials have repeatedly claimed the mantle of guardians of religious liberty, too often their commitment wavers when it is inconvenient for their political agenda. This appears to be one of those times.”
Late Thursday, a federal appeals court stepped in to pause Purkey's execution, issuing a decision in a separate challenge that Purkey raised about his criminal conviction. The US Court of Appeals for the 7th Circuit ruled against Purkey, finding that he wasn't entitled to raise issues now related to whether his trial counsel was ineffective. But the court agreed to stay Purkey's execution until he'd had a chance to exhaust all of his legal options — he could petition the full 7th Circuit to rehear the case for instance, or ask the US Supreme Court to take the case. If Purkey does end up losing, however, the new ACLU case would come back into play.
The ACLU lawsuit isn’t the only pending legal action challenging the Trump administration’s plan. Purkey and other death row inmates have been fighting in court since the Justice Department announced last July that Attorney General Bill Barr had ordered the Bureau of Prisons to resume lethal injections for the first time since 2003. The inmates are still waiting to see if a judge will step in before Lee’s scheduled execution on July 13.
Purkey, Lee, and the other two inmates whose executions are scheduled for July and August were all convicted of murder, among other serious crimes. The Justice Department has made clear that it chose these first four inmates to execute based on the fact that their cases involved the murder of children.
“The American people, acting through Congress and Presidents of both political parties, have long instructed that defendants convicted of the most heinous crimes should be subject to a sentence of death,” Barr said in a statement released by DOJ last month. “The four murderers whose executions are scheduled today 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.”
Lee was found guilty in the murder of a family of three, including an 8-year-old girl. His legal team released a video of the girl’s grandmother, Earlene Peterson, explaining that she was opposed to Lee being executed instead of serving a life sentence, which is what Lee’s codefendant received after he was found guilty.
“Yes, I believe you have to pay for what you do, but that don’t mean death,” Peterson says in the video.
Lee and the other death row inmates who went to court won an injunction in the fall from a federal judge in Washington, DC, putting a pause on their executions. But the US Court of Appeals for the DC Circuit reversed that decision in April, giving the Trump administration the green light to set a new schedule.
The inmates asked the US Supreme Court to order a delay and review the DC Circuit’s decision, but on June 29 a majority of the justices rejected that request; Justices Ruth Bader Ginsburg and Sonia Sotomayor would have delayed the executions and taken up the case, according to the order released by the court.
The Supreme Court’s refusal to get involved didn’t end the inmates’ legal fight, however. In mid-June, the inmates filed a new motion for a preliminary injunction, this time pressing different legal arguments than they did the first round. US District Judge Tanya Chutkan set a fast briefing schedule, ordering the government to respond within a week. She has yet to rule.
The first injunction was about whether the single-drug injection protocol adopted by the Trump administration violated the Federal Death Penalty Act because it didn’t match execution protocols adopted by states where the federal death row inmates were set to be executed. Chutkan ruled that the inmates were likely to win on this argument. The DC Circuit disagreed in a 2–1 decision in April.
Trump’s two appointees to the DC Circuit, judges Greg Katsas and Neomi Rao, sided with the administration in that decision. The Trump administration has made clear that it views the confirmation of conservative federal judges, especially in the appeals courts, as a central part of its policy strategy, politicizing these nominations despite protests from judges, and Chief Justice John Roberts Jr., that they are nonpolitical actors.
The DC Circuit ruling noted that the inmates still had other unresolved legal claims, however, and that’s what the inmates are pressing now before Chutkan. They’re arguing that the administration’s lethal injection plan violates other federal laws, such as the Administrative Procedure Act; the inmates contend the administration failed to consider various risks associated with its lethal injection drug of choice, sodium pentobarbital, and that it represents the type of “cruel and unusual punishment” prohibited by the Eighth Amendment of the Constitution.
Purkey, who was convicted in 2003 of raping and killing a 16-year-old girl, has a separate lawsuit pending seeking to block his July 15 execution. His lawyers filed a request for an injunction in late June arguing that he has schizophrenia, dementia, and other mental illnesses that make him incompetent to be executed under the Eighth Amendment. That case is also assigned to Chutkan, and she set a similarly fast schedule for briefing.
“Wes Purkey is a severely brain-damaged and mentally ill man who suffers from Alzheimer’s disease,” Rebecca Woodman, one of Purkey’s attorneys, said in a statement. “He has long accepted responsibility for the crime that put him on death row, but as his dementia has progressed, he no longer has a rational understanding of why the government plans to execute him. He believes his execution is part of a large-scale conspiracy against him by the federal government in retaliation for his frequent challenges to prison conditions, and he believes his own lawyers are working against him within this conspiracy."
Purkey, Lee, and the two other inmates set for execution — Keith Nelson and Dustin Lee Honken — are held at the Terre Haute high-security federal prison facility in Indiana. In the lawsuit filed Thursday in federal court in Indiana by Hartkemeyer, the Buddhist priest, the ACLU lawyers noted that the Terre Haute facility had documented cases of COVID-19; state and federal jails and prisons across the US have been hot spots for coronavirus cases.
“The Federal Government’s extensive and large-scale plans for the executions amplify the risk posed by the executions. Each execution will require the travel, movement, and congregation of hundreds of individuals, including the families of the victims and the death row prisoners, scores of correctional officers, members of local and national media, as well as large numbers of witnesses and legal counsel from around the country,” the complaint states.
According to the lawsuit, there has been only one execution nationwide since March, carried out by state officials in Missouri.
According to the Death Penalty Information Center, 25 states still permit the death penalty. Among those states, nine haven’t carried out an execution in the past decade, and another five haven’t executed someone in the past five years, per the center’s data.
Federal executions have been even rarer. According to the Federal Bureau of Prisons, three federal executions took place in the early 2000s, with the last one taking place in 2003. There were a total of 37 federal executions between 1927 and 2003, with none occurring in the 1970s, 1980s, or 1990s.
Since 2003, the federal government’s authority to execute inmates has been tied up in court. Federal death row inmates who had execution dates on the calendar filed a lawsuit to stop any future lethal injections in 2005, and a judge delayed those executions while the case was being litigated. As the George W. Bush administration and, later, the Obama administration set additional execution dates, those inmates joined the case and their executions were also put on hold.
The litigation had been inactive since 2011, when the Obama administration began exploring changes to the lethal injection protocol, which in practice put the entire system on hold. It picked back up when the Justice Department announced last summer that it had adopted the new protocol and initially set five execution dates.
The fifth inmate who originally had an execution date, Lezmond Mitchell, is involved in the lethal injection protocol case, but he also has a separate legal challenge to his conviction pending before the 9th Circuit. A three-judge panel in April rejected Mitchell’s argument that he should be allowed to interview jurors to probe whether there was racial bias; Mitchell is Native American. He filed a request for the full court to reconsider the case on June 15.
In ruling against Mitchell, two of the judges wrote separately to express concerns they had that the Justice Department chose to pursue the death penalty against Mitchell when the Navajo Nation, as well as the victims’ family, opposed capital punishment. Mitchell was found guilty in the murder of a 63-year-old woman and her 9-year-old granddaughter; the crime took place on a Navajo reservation.
“The imposition of the death penalty in this case is a betrayal of a promise made to the Navajo Nation, and it demonstrates a deep disrespect for tribal sovereignty,” Judge Morgan Christen wrote. “People can disagree about whether the death penalty should ever be imposed, but our history shows that the United States gave tribes the option to decide for themselves.”
UPDATE
Updated with information about a new 7th Circuit ruling in Wesley Purkey's case.