A second priest for a death row inmate in Indiana may join a lawsuit demanding that the federal government postpone upcoming executions until after the pandemic has been controlled, a federal judge has ruled.
Mark O’Keefe will be permitted to argue alongside Seigen Hartkemeyer that the Justice Department’s and Federal Bureau of Prisons’ decision to schedule executions during a public health crisis was arbitrary and capricious, Judge Jane Magnus-Stinson said Wednesday for the U.S. District Court for the Southern District of Indiana.
Only one other federal prison has executed an inmate since the pandemic began, and the Missouri facility saw an outbreak of Covid-19 infections after the execution in May, according to Hartkemeyer’s complaint.
O’Keefe, a Roman Catholic priest, is the spiritual adviser of record for Dustin Lee Honken, whose execution is scheduled for July 17. While serving time on death row at the high-security federal prison in Terre Haute, Honken has regularly attended mass and received communion, O’Keefe said in his motion to intervene.
O’Keefe has been approved to accompany Honken to the execution chamber, but the 64-year-old priest alleges that the government has substantially burdened his religious rights by requiring that he put himself at risk of contracting Covid-19 in order to fulfill his ministerial obligations to Honken.
His situation is “undeniably similar” to that alleged by Hartkemeyer, who is 68 years old and claims to have a history of respiratory illness, the court said.
Hartkemeyer has been approved to accompany another Terre Haute inmate, Wesley Purkey, to the execution chamber on July 15.
O’Keefe was permitted to intervene in Hartkemeyer’s suit as a matter of judicial economy, because both priests are over 60 years of age and therefore at a higher risk of contracting the virus, and they brought claims under the Religious Freedom Restoration Act, the court said.
The family members of yet another inmate ,Daniel Lewis Lee, weren’t permitted to intervene in Hartkemeyer’s lawsuit and seek to block Lee’s scheduled July 13 execution, the court said.
The family members will view his execution from a separate witness box, whereas the priests have both been approved to be in the execution chamber, the court said. Lee’s family also hasn’t brough claims under RFRA as the priests had, the court said.
However, Magnus-Stinson directed the clerk of the court to open a new case based on their proposed complaint and assign it to her.
Greenberg Traurig LLP represents O’Keefe. The American Civil Liberties Union Foundation and Ropes & Gray LLP represent Hartkemeyer.
The Justice Department represents the Attorney General.
The case is Hartkemeyer v. Barr, S.D. Ind., No. 20-cv-00336, 7/8/20.