October 28, 2020

Federal Government Resumes Executions After 17-Year Hiatus, Executes Seven Prisoners in Three Months

On July 25, 2019, the Department of Justice (DOJ) announced that federal executions would resume and directed the Federal Bureau of Prisons (BOP) to schedule the executions of five death row prisoners. The last federal execution was in 2003. The BOP subsequently scheduled the executions of Daniel Lewis Lee, Lezmond Mitchell, and Wesley Ira Purkey for a one-week period in December 2019, and Alfred Bourgeois and Dustin Lee Honken for a one-week period in January 2020.

Federal executions had previously been stalled as federal death row prisoners challenged the DOJ’s lethal injection protocol. In 2006, in Roane v. Gonzalez, several federal death row prisoners argued that the three-drug lethal injection cocktail used by the government would “inflict unnecessary and savage pain” in violation of the Eighth Amendment. Federal executions were stayed pending the litigation. In 2011, the BOP began to revise its lethal injection protocol following its inability to obtain all the necessary drugs. In announcing the resumption of executions, the DOJ also announced a Federal Execution Protocol Addendum that replaced the previous three-drug protocol with the single drug pentobarbital.

Four of the five scheduled prisoners filed suit against the DOJ and BOP. The U.S. District Court for the District of Columbia found on November 20, 2019 that the prisoners had demonstrated a likelihood of success on their claim that the 2019 protocol, in establishing a single procedure for all federal executions, violates the Federal Death Penalty Act’s (FDPA) requirement that federal executions be “in the manner prescribed by the law of the State in which the sentence is imposed,” codified at 18 U.S.C. § 3596(a). The court granted the prisoners’ motion for a preliminary injunction, staying the prisoners’ executions until their claims could be adjudicated.

On December 2, 2019, the U.S. Court of Appeals for the District of Columbia Circuit denied the DOJ’s subsequent request to vacate or stay the district court’s injunction pending appeal in a one-page opinion that did not address the merits of the prisoners’ claim. The U.S. Supreme Court unanimously also declined to stay or vacate the preliminary injunction on December 6, ensuring the executions remained on hold until the appeal could be fully adjudicated.

On April 7, 2020, the D.C. Circuit Court of Appeals issued a 2-1 decision vacating and remanding the preliminary injunction. While each judge had their own interpretation of the FDPA, two of the panel judges believed that the district court misinterpreted the law. The court declined to rule on the plaintiffs’ other claims, brought under the Food, Drug, and Cosmetic Act (FDCA), the Controlled Substances Act, and the Administrative Procedure Act.

The prisoners filed a petition for certiorari review in the Supreme Court on June 5, 2020. While the petition was pending, the DOJ directed the BOP to reschedule execution dates for Mr. Lee, Mr. Purkey, and Mr. Honken, as well as to schedule a date for Keith Dwayne Nelson. (Alfred Bourgeois’ execution was stayed by the U.S. District Court for the District of Southern Indiana to allow further process on his intellectual disability claim, and Lezmond Mitchell’s execution was stayed by the U.S. Court of Appeals for the Ninth Circuit to allow litigation to continue on his juror bias claim). The BOP set execution dates for July and August 2020.

Though the Supreme Court denied certiorari review on June 29, 2020, several claims remained pending in the district court regarding the federal execution protocol. On July 13, the day of Daniel Lewis Lee’s scheduled execution, the district court issued a second preliminary injunction barring all four scheduled executions, noting that, “Plaintiffs still have not been afforded sufficient opportunity to evaluate the 2019 Protocol.” The Government filed motions to vacate with both the D.C. Circuit and the Supreme Court. In the middle of the night on July 14, 2020, after the appeals court denied the Government’s motion, the Supreme Court vacated the preliminary injunction in an unsigned order, stating that the plaintiffs did not show they were likely to meet the “exceedingly high bar” to succeed on their merits of their Eighth Amendment claim. Daniel Lewis Lee was then executed. The D.C. District Court issued another preliminary injunction on July 15, finding that the remaining three living plaintiffs demonstrated a likelihood of success on their FDCA claim, which the Supreme Court again vacated in the middle of the night, after the D.C. Circuit again denied the Government’s motion to stay the injunction. The scheduled executions went forward throughout July and August, as detailed below.

In the months before the executions were to take place, the COVID-19 outbreak gripped the world. In March 2020, the World Health Organization declared that the novel coronavirus was a global pandemic. The BOP implemented rules to comply with health guidelines and minimize risks to prison staff, prisoners, and visitors. As a result, visitation was limited, and in some cases, completely halted. Family members, spiritual advisors, and in most cases, attorneys, were prevented from having in-person meetings with prisoners either explicitly under prison rules or because a meeting would mean greater risk of exposure. While multiple state and federal prisoners scheduled for execution sought stays citing the challenges of the ongoing global pandemic—with many state prisoners receiving stays or date postponements on those grounds—no federal executions have been stayed on the basis of COVID-19.

In addition to the joint lethal injection protocol litigation, each of the seven prisoners executed since July pursued individual claims in the months and weeks prior to their executions, often seeking  injunctions and relief in the federal districts where they were convicted, the D.C. federal courts, and the district of confinement (the latter, for all, being the U.S. District Court for the Southern District of Indiana, where the Terre Haute Federal Correctional Institution houses federal death row).

Daniel Lewis Lee

Executed July 14, 2020

Mr. Lee requested a stay of execution from the U.S. District Court for the Southern District of Indiana, citing newly discovered evidence and ineffective assistance of counsel. The district court granted Mr. Lee’s motion on December 5, 2019, but the U.S. Court of Appeals for the Seventh Circuit vacated the stay the following day. In March 2020, the district court denied Mr. Lee habeas relief on his claims, which the Seventh Circuit affirmed in July. The Supreme Court denied certiorari on July 14.

Simultaneously, Mr. Lee litigated in the U.S. District Court for the Eastern District of Arkansas, where he was convicted. On December 6, 2019, the district court stayed Mr. Lee’s execution in light of a pending related case in the Supreme Court. On June 1, 2020, the U.S. Court of Appeals for the Eighth Circuit vacated the district court’s stay but delayed issuing a mandate. Mr. Lee also filed a motion in the Arkansas district court to change his execution date in light of the COVID-19 pandemic in early July, but the court denied the motion.

On July 14, 2020, the Government requested issuance of the mandate in the Eight Circuit to overcome the stay from December 2019. Mr. Lee filed a motion opposing the issuance of the mandate and asked the Eight Circuit to decide his motion for rehearing en banc. The Eighth Circuit granted the Government’s request and issued a mandate. Though his execution had been scheduled for July 13, the BOP then executed Mr. Lee in the early hours of July 14 without notifying his defense counsel and before counsel could seek Supreme Court review of the Eighth Circuit’s decision. Mr. Lee was the first federally-executed prisoner since 2003.

Wesley Ira Purkey

Executed July 16, 2020

In November 2019, Mr. Purkey sought to enjoin his execution under Ford v. Wainwright, claiming that his schizophrenia, traumatic brain injuries, and dementia rendered him incompetent to be executed. On July 15, 2020, the U.S. District Court for the District of Columbia granted Mr. Purkey a preliminary injunction for his competency claims to be litigated. The same day, the Government asked both the D.C. Circuit and the Supreme Court to either stay or vacate the preliminary injunction. The circuit court declined to vacate, but the Supreme Court vacated the preliminary injunction by a 5-4 vote, clearing the way for Mr. Purkey’s execution.

Simultaneously, on July 11, 2020, the Supreme Court granted the Government’s request to vacate the stay issued by the Seventh Circuit in early July which had temporarily stayed Mr. Purkey’s execution until the court could finalize its proceedings. Mr. Purkey then filed a request to stay his execution and a petition for certiorari with the Supreme Court. In the early hours of July 16, the Court denied both the stay request and certiorari petition. Though his execution had been scheduled for July 15, the BOP executed Mr. Purkey hours after the Supreme Court’s denial, again without notifying counsel.

In the weeks before Mr. Purkey’s scheduled execution, his spiritual advisor of eleven years had also asked the U.S. District Court for the Southern District of Indiana for an injunction. Rev. Dale Hartkemeyer, a Buddhist priest, cited the outbreak that occurred following Walter Barton’s May 2020 execution in a Missouri prison in calling the federal plan to push forward with executions during the pandemic “reckless.” He also noted his own advanced age and respiratory issues as presenting an “untenable conflict” in deciding between risking his life and exercising his “religious obligation to be present for Mr. Purkey’s execution.”

Dustin Lee Honken

Executed July 17, 2020

On July 3, 2020, Mr. Honken filed suit in the U.S. District Court for the Southern District of Indiana, claiming that the BOP’s refusal to allow his religious advisor, Father Mark O’Keefe, into the execution chamber violated both the First Amendment and the Religious Freedom Restoration Act. In mid-June, the Supreme Court had stayed the execution of Texas death row prisoner Ruben Gutierrez, pending litigation over access to a spiritual adviser in the execution chamber. However, the BOP granted Mr. Honken’s request to have Father O’Keefe present in the execution chamber on July 7, and the district court subsequently dismissed the issue as moot.  

Father O’Keefe also joined the lawsuit filed by Rev. Dale Hartkemeyer, Wesley Purkey’s spiritual advisor, concerning the danger of attending an execution during the pandemic. Father O’Keefe argued that Mr. Honken’s current execution date forced him “assume the risk of contracting and spreading COVID-19 in order to honor his religious obligation.” The U.S. District Court for the Southern District of Indiana denied relief, and the Supreme Court denied certiorari.

Mr. Honken also filed motions in the U.S. District Court for the Northern District of Iowa seeking to void his execution date and a stay on the basis of the COVID-19 pandemic. Mr. Honken challenged the authority of the DOJ and the BOP to set execution dates absent congressional action or court order, an argument raised previously by Daniel Lewis Lee in the U.S. District Court for the Eastern District of Arkansas. Applying the reasoning of that court, the district court held that congressional action or court order “may be considered best practice” but is not required for the DOJ to implement a death sentence, and denied both motions. The court further held that the Executive Branch “is in the best position to weigh the risks associated with COVID-19 and the benefits of proceeding with the execution.”

On July 16, Mr. Honken asked the D.C. District Court to stay his execution in order to allow him to appeal the court’s denial of the third injunction motion stemming from the Federal Execution Protocol litigation. The district court denied Mr. Honken’s request, and his subsequent appeal to the D.C. Circuit Court of Appeals was denied on July 17. Later that day, the federal government executed Mr. Honken, making him the first Iowan in more than 50 years to be put to death and the third federal death row prisoner executed in a single week.  

Lezmond Mitchell

Executed August 26, 2020

Mr. Mitchell, the only Native American prisoner on federal death row, was originally scheduled for execution on December 11, 2019. Mr. Mitchell filed a motion in the Ninth Circuit Court of Appeals to stay the execution based on the 2017 decision in Pena-Rodriguez v. Colorado, in which the Supreme Court held that a jury verdict influenced by racial stereotypes can give rise to a constitutional violation. Mr. Mitchell had already been litigating that claim in the Ninth Circuit federal courts when his date was scheduled. After staying the execution in October 2019 to enable full consideration, the Ninth Circuit denied Mr. Mitchell’s appeal on April 30, 2020. On July 29, 2020, the BOP scheduled Mr. Mitchell’s execution for August 26, 2020.

Two days later, on July 31, Mr. Mitchell filed a petition for clemency that spoke to the sovereignty of the Navajo Nation of which he was a member, the disproportionality of his sentence in relation to his co-defendant, and the support for mercy that tribal leaders, community members, and surviving victims had voiced. The Trump administration did not act on the petition, and on August 26 the D.C. District Court denied that Mr. Mitchell had a protected interest in receiving a clemency decision.

On August 25, the Supreme Court declined to review the Ninth Circuit jury bias decision, the same day it denied Mr. Mitchell’s motion to stay his execution to allow him to fully litigate his Execution Protocol challenge.

Keith Nelson

Executed August 28, 2020

On July 16, the D.C. District Court granted Mr. Nelson’s emergency motion for preservation of evidence and ordered that following the executions of Mr. Purkey and Mr. Honken, the BOP preserve “all IV tubing, syringes and drug vials used in those Executions” and that in the event of an autopsy, the coroner must “collect evidence related to pulmonary edema and issues inserting Mr. Purkey’s or Mr. Honken’s intravenous line.” Pulmonary edema occurs when fluid accumulates in the lungs, making it difficult to breathe and causing the painful phenomenon of “air hunger.” Though Mr. Purkey’s autopsy showed he experienced “severe bilateral acute pulmonary edema,” and despite an expert’s confirmation that this phenomenon occurred while Mr. Purkey was still alive, the D.C. Circuit Court nonetheless denied Mr. Nelson’s request to expedite a hearing on the Eighth Amendment challenge to the method of execution on August 15. The court instead granted the Government’s motion to dismiss the claim, explaining that it was bound by the Supreme Court’s ruling vacating the district court’s July 15 lethal injection preliminary injunction, such that even “the evidence that Purkey did in fact experience the edema and pain as predicted” would not be sufficient for “pleading and then establishing an Eighth Amendment claim.” On August 25, the D.C. Circuit denied Mr. Nelson’s request for a stay to allow for further consideration of the district court’s dismissal.

Though the D.C. District Court had granted Mr. Nelson an injunction on August 27, 2020, to remain in place until the Government satisfied the FDCA, the D.C. Court of Appeals vacated the injunction on the same day in a summary order. On August 28, the district court declined to issue a new injunction including specific findings of irreparable harm.

William LeCroy

Executed September 22, 2020

Mr. LeCroy moved the U.S. District Court for the Northern District of Georgia to postpone his execution date until spring of 2021 on August 24, citing his attorneys’ inability to meet with him or attend the execution due to the pandemic. Nearly two weeks later, the court denied the motion on the grounds that it lacked authority to move the date absent granting a stay, which Mr. LeCroy had not sought. The Eleventh Circuit Court of Appeals affirmed the district court’s denial on September 16, and on the day of Mr. LeCroy’s scheduled execution, the Supreme Court denied his stay motion and certiorari petition.

In the days before Mr. LeCroy’s execution, the D.C. federal courts also declined to preliminarily enjoin the Government based on Mr. LeCroy’s constitutional and statutory arguments against the lethal injection protocol. Both the D.C. District Court and D.C. Court of Appeals noted the “last minute” nature of the injunction request and that Mr. LeCroy had not previously consolidated his complaint with the other prisoners’ lethal injection litigation, though they did not deny his claims on timeliness grounds.  

Christopher Vialva

Executed September 24, 2020

Mr. Vialva, a Black man sentenced to death for killing two White victims when he was 19 years old, filed a habeas petition in the U.S. District Court for the Southern District of Indiana on August 10. Mr. Vialva sought the review of his ineffective assistance of counsel and other constitutional claims that he argued he was procedurally unable to receive in the court of conviction, the U.S. District Court for the Western District of Texas. The district court denied the petition and the Seventh Circuit Court of Appeals affirmed in a per curiam decision on September 18.

Meanwhile, Mr. Vialva also pursued injunctive relief in the Western District of Texas, challenging the authority of the federal government agencies to set his execution date and execute him in light of a 2000 stay from the court, which he argued remained in effect, and the Federal Death Penalty Act, which he argued the Government had violated in deviating from the death penalty procedures prescribed by Texas law. The district court denied him an injunction on September 11, finding his claims meritless; the Fifth Circuit Court of Appeals affirmed a week later and the Supreme Court denied certiorari review on the day of Mr. Vialva’s execution.

Mr. Vialva was the first prisoner executed by the federal government for a crime committed as a teenager in 70 years.

Looking Forward

As of this writing, there are three additional federal executions scheduled for 2020: those of Orlando Hall, (November 19), Lisa Montgomery (December 8), and Brandon Bernard (December 10). Ms. Montgomery, the only woman on federal death row, would be the first woman executed by the federal government since 1953.

If Orlando Hall’s execution takes place, the federal government will have executed more prisoners than all states combined in 2020.