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U.S. Executes First Federal Prisoner After 17-Year Hiatus (2)

July 14, 2020, 10:02 AMUpdated: July 14, 2020, 3:57 PM

The Trump administration carried out the first federal execution in 17 years, after a divided U.S. Supreme Court early Tuesday rejected four prisoners’ cruel and unusual punishment appeal.

Daniel Lee, who was convicted of killing a family of three in 1996, including an 8-year-old, was executed by lethal injection at 8:07 a.m. Tuesday in Terre Haute, Indiana, the Bureau of Prisons said.

Lee’s execution, which didn’t occur as scheduled on Monday after lower courts intervened, is the first of three the federal government has scheduled this week. A fourth, Keith Dwayne Nelson, is scheduled for next month.

All four of the condemned were convicted of killing children, the Supreme Court majority pointed out.

Wesley Ira Purkey, who’s scheduled to be executed July 15, killed a 16-year-old. Dustin Lee Honken, scheduled for execution July 17, killed five people, including a 10-year-old and a 6-year-old. Nelson killed a 10-year-old.

The high court’s five Republican appointees said the prisoners’ claims didn’t merit “last-minute intervention by a Federal Court,” in the unsigned opinion issued after 2 a.m., which cleared the way for the government to resume executions. A federal appeals court order handed down hours before that said the issues merited further scrutiny.

The Supreme Court’s four Democratic appointees dissented, criticizing what they deemed the majority’s haste, with Justice Sonia Sotomayor saying the majority “sets a dangerous precedent.”

Ruth Friedman, a lawyer for Lee, said it’s “beyond shameful” that the government “carried out this execution in haste, in the middle of the night, while the country was sleeping. We hope that upon awakening, the country will be as outraged as we are.”

In a statement, Attorney General William Barr said Lee “finally faced the justice he deserved.” Barr made no mention of the need to seek justice for victims’ familes, as he did in advance of Lee’s and other upcoming executions. Relatives of Lee’s victims opposed the execution.

The justices simultaneously rejected two more claims specific to Lee, without any noted dissent. One of those claims related to an appeal from the victims’ relatives who opposed the execution. They wanted to witness it but felt stymied by health and travel concerns amid the Covid-19 pandemic.

In another failed appeal, Lee raised claims related to habeas corpus, ineffective assistance of counsel, and allegations of the prosecution concealing evidence that the justices likewise declined to review.

The Supreme Court majority vacated the injunction put in place against the executions on Monday by a Washington trial judge, saying the inmates couldn’t show they’d succeed on their Eighth Amendment claim that challenged the use of a single execution drug, pentobarbital sodium. The majority brushed aside the suggestion that pentobarbital causes prisoners to experience flash pulmonary edema, a form of respiratory distress that temporarily produces the sensation of drowning or asphyxiation.

The majority cited a previous Sotomayor opinion in which the justice said the drug “is widely conceded to be able to render a person fully insensate” and “does not carry the risks” of pain that some have associated with other lethal injection protocols.

But Sotomayor and the rest of the Democratic appointees strongly disagreed with the majority. She wrote a dissent, joined by Justices Ruth Bader Ginsburg and Elena Kagan, saying the majority “hastily” disposed of the case while accepting “the Government’s artificial claim of urgency.”

Justice Stephen Breyer wrote his own dissent, joined by Ginsburg, saying there are “significant questions” about the government’s execution method. As they have in the past, Breyer and Ginsburg also questioned the constitutionality of the death penalty generally.

The Supreme Court majority criticized what it deemed the last-minute nature of the preliminary injunction imposed by Washington judge Tanya Chutkan, citing a 5-4 decision from 2019 that divided the justices the same way. The inmates said the rushed nature of the litigation was the government’s doing in quickly setting down execution dates after a previous protocol challenge, which Chutkan also greenlit, was rejected by the U.S. Court of Appeals for the D.C. Circuit in the spring. The justices declined to review that D.C. Circuit ruling last month.

A couple of hours before the Supreme Court’s action, the D.C. Circuit late Monday night rejected the government’s attempt to undo the injunction, instead setting a briefing schedule that would have kept the executions on hold and taken the litigation past this week’s scheduled execution dates.

Now, Sotomayor said in dissent, “because of the Court’s rush to dispose of this litigation in an emergency posture, there will be no meaningful judicial review of the grave, fact-heavy challenges respondents bring to the way in which the Government plans to execute them.”

Lee’s execution is the third in the U.S. since the pandemic hit, following ones of state prisoners in Missouri in May and Texas last week that the justices also declined to block.

Lee’s victims’ relatives'—Earlene Branch Peterson, Kimma Gurel, and Monica Veillette—had won an injunction July 10 after a federal judge in Indiana said the government gave their concerns short shrift. But the federal appeals court that covers Indiana vacated the injunction Sunday, saying the judge’s reasoning was faulty and that the family’s claim was frivolous as a matter of law.

The government disclosed over the weekend that a prison staff member in Terre Haute involved with execution preparation tested positive for Covid-19.

Purkey’s and Honken’s spiritual advisers, who want to minister to them at the executions, have also raised pandemic concerns, saying they’re forced to choose between health and faith.

The cases are Barr v. Lee, U.S., No. 20A8, application for stay or vacatur granted 7/14/20, Lee v. Watson, U.S., No. 20-5032, stay, review denied 7/14/20, Peterson v. Barr, U.S., No. 20A6, stay denied 7/14/20.

(Adds links, lawyer statement, Barr statement, BOP release, dockets.)

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

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