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U.S. Executes Second Inmate in Days After Appeals Rejected (4)

July 15, 2020, 9:12 PMUpdated: July 16, 2020, 12:43 PM

A divided U.S. Supreme Court cleared the way for a second federal execution this week—in another middle-of-the-night ruling—siding against the death row inmate on several issues including his mental competency and his Buddhist priest’s plea to halt the execution during the Covid-19 pandemic.

Wesley Ira Purkey, a 68-year-old with Alzheimer’s disease, was executed at the federal prison in Terre Haute, Ind., on Thursday morning at 8:19 a.m., according to local reports from media witnesses.

The execution came roughly five hours after the court’s Republican-appointed majority, without comment, vacated two trial court injunctions, clearing the way for his execution over two dissents from the Democratic appointees. Those came in the context of Purkey’s claim that he was too mentally incompetent to be executed.

The justices had earlier split 5-4 along the same lines in lifting a stay on Wednesday afternoon that was in place against Purkey’s execution.

Purkey was initially scheduled to be executed on Wednesday afternoon, but that was delayed due to the litigation. Sentenced to death for the 1998 killing of 16-year-old Jennifer Long in Kansas City, Mo., he’s the second federal inmate executied so far this week. A third, Dustin Lee Honken, is scheduled for Friday. Keith Dwayne Nelson, is scheduled for next month. All four men were convicted of killing children.

The resumption of federal executions marks the culmination of a Trump administration effort announced by Attorney General William Barr last summer. Litigation over the executions this week has brought into focus the sharp divide among the justices on capital punishment as overall support for it among the American public declines.

The 5-4 breakdown and middle-of-the-night timing on Purkey’s claims echoed the high court’s action in the case of Daniel Lee, whose July 14 execution was the first federal one in 17 years. Lee’s execution followed the same 5-4 judicial split in a contentious opinion that rejected a claim from Lee and other inmates that the government’s lethal injection protocol could violate the Eighth Amendment’s ban on cruel and unusual punishment.

“Two days ago, the Federal Government conducted its first execution in nearly two decades,” Justice Stephen Breyer wrote in his dissent in Purkey’s case, joined by Justice Ruth Bader Ginsburg. “Today, it will conduct its second. Both cases have come before us with the defendants pointing to what I believe are serious legal defects of a kind that have long plagued the administration of the death penalty in the United States.”

Justice Sonia Sotomayor, writing her own dissent, joined by Breyer, Ginsburg, and Justice Elena Kagan, said “proceeding with Purkey’s execution now, despite the grave questions and factual findings regarding his mental competency, casts a shroud of constitutional doubt over the most irrevocable of injuries.”

Purkey also unsuccessfully pressed an ineffective assistance of counsel claim. His Zen Buddhist priest, who wanted to be present at the execution, unsuccessfully pressed his own appeal, saying the Covid-19 pandemic’s risks put him in an untenable position, having to choose between faith and health.

In addition to overturning the trial court injunction that had halted Purkey’s execution on competency grounds, the justices also overturned an injunction related to another aspect of the government’s execution protocol. The justices last month rejected yet another challenge to the protocol from inmates.

No justices recorded dissent from the orders against Purkey on the three claims besides the competency claim.

The cases are United States v. Purkey, U.S., No. 20A4, 7/15/20, Barr v. Purkey, U.S., No. 20A9, Barr v. Purkey, U.S., No. 20A10, Hartkemeyer v. Barr, U.S., Nos. 20-23, Purkey v. United States, U.S., No. 20-26.

(Adds execution.)

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; Tom P. Taylor at ttaylor@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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