Updated story: In the late hours on Monday, the US Supreme Court cleared the way for the first execution in 17 years, with an unsigned ruling.
The unsigned 5-to-4 ruling saw Justices Stephen Breyer and Sonia Sotomayor dissenting. They were joined by Justices Ruth Bader Ginsburg and Elena Kagan, the other members of the court’s four-member liberal wing.
The following is a statement from Ruth Friedman, attorney for Daniel Lee, who was executed this morning:
“It is important for everyone to understand exactly what happened last night to our client, Daniel Lewis Lee. At 2 AM on July 14, while the country was sleeping, the Supreme Court issued a 5-4 decision vacating the injunction that had been in place against the first federal execution in 17 years. Within minutes, the Department of Justice moved to re-set Danny Lee’s execution–for 4 AM, summoning media and witnesses back to the prison in the very middle of the night. When it was brought to the government’s attention that a court stay still remained in place, the DOJ first maintained that that stay presented no legal impediment to executing Danny Lee, but then filed an ’emergency’ motion to lift the stay.
“Over the four hours it took for this reckless and relentless government to pursue these ends, Daniel Lewis Lee remained strapped to a gurney: a mere 31 minutes after a court of appeals lifted the last impediment to his execution at the federal government’s urging, while multiple motions remained pending, and without notice to counsel, he was executed.
“It is shameful that the government saw fit to carry out this execution during a pandemic. It is shameful that the government saw fit to carry out this execution when counsel for Danny Lee could not be present with him, and when the judges in his case and even the family of his victims urged against it. And it is beyond shameful that the government, in the end, 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.”
Daniel Lee, Lee, 47, a former white supremacist who has denounced his ties to that movement, was set to be executed for his part in the 1996 killing of a family of three.
U.S. District Judge Makes Late Ruling, Prohibits First Federal Executions in 17 Years
By Linh Nguyen
WASHINGTON DC – Just hours before the first of four incarcerated men was scheduled to be the first federal execution in nearly two decades, Judge Tanya S. Chutkan Monday granted a preliminary injunction that prohibits the government from executing the men—pending a lawsuit challenging the legality and constitutionality of the government’s lethal injection protocol.
The government had scheduled the executions of Daniel Lee, Wesley Purkey and Dustin Honken for July 13, 15 and 17, respectively. The execution of Keith Nelson would be a month later on Aug. 28.
These executions were scheduled despite the pending litigation addressing significant issues in these incarcerees’ cases, including opposition to the death sentence from victims’ family members, concerns about mental competency and compelling mitigation evidence that juries did not hear. Judge Chutkan’s ruling came hours before Lee was set to be executed.
“The government has been trying to plow forward with these executions despite many unanswered questions about the legality of its new execution protocol,” said Shawn Nolan, an attorney for men facing federal execution. “The district court’s injunction ensures that the courts will have the opportunity to carefully address those issues.”
The government usually schedules execution dates with only a few weeks’ notice. The COVID-19 pandemic has not changed this norm.
“Given that these executions threatened to become COVID-19 super-spreader events, the injunction will also protect the lives and health of the correctional staff, victim family members, spiritual advisors, attorneys, and others who must witness the executions,” said Nolan.
The plaintiff’s motion for a preliminary injunction was filed on June 19, 2020. The motion cites that the executions should be halted until the challenges to the new federal lethal-injection 
protocol that was announced last year in July are resolved.
The 2019 protocol changed the lethal-injection method to use a single lethal-injection drug instead of the prior standard of three lethal-injection drugs. The plaintiffs argued that the defendant, U.S. Attorney General William Barr, failed to consider many concerns about the protocol, saying that the protocol is “arbitrary and capricious.”
In the motion, the three primary concerns raised by the plaintiffs is that the defendant failed to consider the risk that the drug could create undesirable respiratory distress, the problem of IV insertion and the risks associated with compounding pharmacies.
Defendants also argued that the 2019 protocol is a violation of the Eighth Amendment, which prohibits cruel and unusual punishments, because it creates a demonstrated risk of severe pain.
The protocol, they said, also violates the Food, Drug, and Cosmetic Act and the Controlled Substances Act and deprives the individual facing federal execution from their right to counsel.
If the injunction were not granted, the executions would still be in place and the plaintiffs “are likely to suffer irreparable injury,” or death, they argued.
In Lee’s case, his attorney, Ruth Friedman, argued that Lee’s death sentence should be vacated altogether and that a life sentence in prison would be appropriate.
Friedman noted that Lee ultimately received the death sentence because the government relied on “junk science and false evidence.” She isn’t the only one who argued that Lee should receive a life sentence—the trial judge, the lead prosecutor and the victims’ family oppose executing Lee.
Lee has been on federal death row since 1999, when he was convicted of a capital homicide. He and his co-defendant were involved in anti-government, white supremacist and criminal activities. The jury sentenced Lee’s co-defendant, Chevie Kehoe, to life in prison, while Lee received the death penalty. Local prosecutors wanted to drop the death penalty for Lee because they believed he was less culpable than Kehoe, but the federal government maintained the sentencing.
“Two separate federal judges have found on two different grounds that Danny Lee’s death sentence violates the Constitution and should be invalidated,” said Morris Moon, Lee’s attorney. “Unfortunately, arcane procedural rules prevented both judges from granting Mr. Lee relief from his unconstitutional punishment.”
As for Wesley Purkey, he has suffered from schizophrenia, Alzheimer’s disease and dementia, making him mentally incompetent for execution.
“The devastating combined effects of schizophrenia, Alzheimer’s disease, dementia, and a lifetime of trauma have left Wes Purkey unable to comprehend why the federal government plans to execute him,” said Rebecca Woodman, Purkey’s attorney.
“While he long ago accepted responsibility for the crime that put him on death row, he no longer has any rational understanding of why the government plans to execute him. He believes his execution is part of a large-scale conspiracy against him by the federal government in retaliation for his frequent challenges to prison conditions,” Woodman added.
Lawyers argued that the Eighth Amendment prohibits executing someone who lacks mental competency for understanding the reasoning behind their execution—therefore, his execution would constitute a cruel and unusual punishment.
The pending lawsuit against the 2019 Protocol addresses Purkey’s circumstances. Because it has not been resolved yet, a decision regarding Purkey’s definite death row status cannot be established.
Purkey was convicted in 1998 for the kidnapping, raping and killing of a 16-year-old female. The trial jury was not made aware of Purkey’s mental conditions and past trauma and abuse, which could have influenced their sentencing.
In the case of Dustin Honken, Honken was convicted of murders committed in the state of Iowa, for which he received the death sentence.
However, Iowa abolished the death penalty in 1965. Honken could have been prosecuted in the state court and avoided the death penalty, but he was prosecuted in the federal court. His attorney notes that Honken’s trial and sentencing were “plagued by misconduct and the ineffectiveness of counsel.”
Honken also suffered a “dysfunctional” background and has mental health problems that stemmed from that, which the jury was not made aware of.
Honken has served 12 years on federal death row in solitary confinement.
“Despite these flaws, which implicates essential constitutional guarantees, the government now seeks to execute Mr. Honken, a deeply remorseful and devout Catholic and loving father of two children,” said his attorney, Shawn Nolan. “Mr. Honken is relying heavily on his Catholic faith and his spiritual leaders to get him through this difficult time.”
Keith Nelson’s attorney said that Nelson was also sentenced to death “after a trial plagued by ineffective counsel that committed crucial errors and failed to conduct even the most basic investigation.”
Similarly to Honken and Purkey, Nelson also suffered from a troubled childhood that resulted in mental illness and brain damage. This information was also not disclosed to the jury, impairing their ability to make a fair judgment on the appropriate punishment. There was other mitigating evidence that was not disclosed to the jury.
“Mr. Nelson’s death sentence is the result of a proceeding that denied him constitutionally guaranteed protections and reveals another deep flaw in the federal death penalty system,” said Dale Baich, Nelson’s attorney.
Nelson was convicted and sentenced to death for the kidnapping, raping and killing of a 10-year-old girl in Kansas City, Kansas, in 1999.
As the lawsuit challenging the 2019 Protocol devised by Barr is ongoing, it is uncertain when it will resolve and what the fate of these men facing federal execution will be when it does resolve.
To sign up for our new newsletter – Everyday Injustice – https://tinyurl.com/yyultcf9
