The United States Law Week

U.S. Can’t Resume Federal Executions After 17 Years as Planned (4)

July 13, 2020, 12:41 PMUpdated: July 14, 2020, 5:04 AM

The Trump administration couldn’t proceed with the first federal execution in 17 years on Monday as scheduled, as a Washington appeals court refused to lift an injunction and the U.S. Supreme Court didn’t rule on related appeals before midnight.

The U.S. Court of Appeals for the D.C. Circuit kept four pending executions on hold while ordering further briefing on the issue of whether the government’s lethal injection protocol violates the Eighth Amendment’s ban on cruel and unusual punishment.

If left undisturbed, the D.C. Circuit’s order means not only that the government wasn’t able to execute Daniel Lee on Monday but also that it won’t be able to proceed with two additional executions planned later this week. Wesley Ira Purkey and Dustin Lee Honken are also scheduled to be executed by lethal injection at an Indiana federal prison on July 15 and July 17, respectively. Keith Dwayne Nelson is likewise scheduled for execution next month.

As of midnight Monday, the U.S. Supreme Court hadn’t acted on any of the appeals related to the protocol or to Lee specifically pending before the justices. Among the claims pending at the high court is an appeal from relatives of Lee’s victims who oppose his execution but sought to delay it due to concerns about traveling during the Covid-19 pandemic.

A Washington judge, Tanya Chutkan, agreed Monday to halt the scheduled execution of Daniel Lee and other upcoming inmates, on Eighth Amendment grounds, a move that the government quickly challenged at the D.C. Circuit. Not long before midnight Monday, the appeals court rejected the government’s effort to undo the injunction, instead setting a briefing schedule that would extend past all three of this week’s scheduled execution dates.

The justices last month cleared what was seen as a major obstacle to the executions by rejecting a different protocol challenge in which Judge Chutkan had also sided with the inmates. But the D.C. Circuit ruled against the inmates in a ruling the justices declined to review.

Lee’s execution, for his role in killing a family of three, including an 8-year-old, was set to be the first federal death sentence imposed since 2003. Purkey and Honken were also convicted of killing children.

Earlier Monday, Lee filed his own petition with the justices, raising claims related to habeas corpus, ineffective assistance of counsel, and allegations of the prosecution concealing evidence.

The high court also has pending an emergency government motion seeking to lift a temporary stay granted to Purkey.

In Lee’s case, the victim family members—Earlene Branch Peterson, Kimma Gurel, and Monica Veillette—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 July 12, saying the judge’s reasoning was faulty and that the family’s claim was frivolous as a matter of law.

Challenging that ruling at the Supreme Court on Monday, the family said that, “despite repeatedly invoking the interest of victims and their families, the government not only disregards the risks to those families in attending the execution, but cynically asserts that they have no interest in the issue worth pursuing in the courts.”

The high court, which had little willingness to accept death row inmates’ appeals during the recently completed term, may still have the last word as to whether the executions go forward and when.

Two U.S. executions have taken place so far during the pandemic after the justices rejected challenges from state inmates in Missouri in May and Texas last week.

The Justice Department’s resumption of federal executions, first announced last summer, has faced multiple legal challenges, including pandemic-related ones. 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.

(Adds DC Circuit order, other details.)

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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