PRISON INDUSTRIAL COMPLEX USA
First federal execution in 17 years put on hold
A convicted killer was set to be executed Monday in Indiana.

An aerial view of the execution facility at the United States Penitentiary in Terre Haute, Ind.

By JOSH GERSTEIN
07/13/2020

The federal government’s plan to conduct its first execution in more than 17 years was put on hold by a judge in Washington just hours before it was to take place Monday, prompting a scramble by Justice Department lawyers to get a higher court to lift the order and allow the execution to proceed.

U.S. District Court Judge Tanya Chutkan issued an injunction just before 10 a.m. Eastern time Monday, about six hours before Daniel Lee, 47, was scheduled to be executed at the U.S. Penitentiary in Terre Haute, Ind.

Chutkan said there was a strong likelihood that the lethal injection protocol the federal Bureau of Prisons adopted last year calling for use of a single drug, pentobarbital, was unconstitutional because it put condemned inmates at risk of serious pain or suffering.

“The scientific evidence before the court overwhelmingly indicates that the 2019 Protocol is very likely to cause Plaintiffs extreme pain and needless suffering during their executions,” wrote Chutkan, an appointee of former President Barack Obama.

Justice Department lawyers filed an immediate appeal with the D.C. Circuit Court of Appeals in a bid to allow the execution to proceed as scheduled.

In her 22-page ruling Monday, Chutkan said testimony from medical experts and witnesses from prior executions led to the conclusion that inmates subject to the single-drug method often experience an acute fluid buildup in the lungs that induces panic and a sensation of drowning.

“Eyewitness accounts of executions using pentobarbital describe inmates repeatedly gasping for breath or showing other signs of respiratory distress, and indicate that flash pulmonary edema is common and extremely painful,” the judge wrote.

Chutkan said lawyers for inmates facing execution had shown two practical alternatives: administering a sedative or anti-anxiety drug before the deadly dose of pentobarbital, or carrying out the execution by firing squad.

Justice Department attorneys called the addition of another drug “untried and untested.” However, such a procedure involving use of a dose of fentanyl was followed for an execution in Nebraska last August.

Lawyers for the government dismissed the inmates’ proposal of a firing squad, calling that suggestion “insincere.”

Justice Department attorneys argued in court filings that last-minute orders seeking to interfere with executions are discouraged by legal precedents, but Chutkan said the government was to blame for the timing.

“The succession of last-minute rulings is the result of the Government’s decision to set short execution dates even as many claims, including those addressed here, were pending,” she wrote.

Chutkan’s latest ruling halting Lee’s execution came one day after a federal appeals court overturned a lower-court order blocking the event because family members of the victims did not want to travel amid the coronavirus pandemic.

A three-judge panel of the Chicago-based 7th Circuit Court of Appeals unanimously lifted the earlier injunction Sunday. The appeals judges called the victim’s family members’ suit “frivolous” and said they had no basis to file suit because — although they were invited to attend the execution — they had no right in law or regulations to attend.

Lee, 47, has been set to be executed at a federal penitentiary on Monday afternoon for the brutal 1996 murder of a family of three in Arkansas as part of a robbery aimed at raising funds for a white supremacist organization.

Last July, Attorney General William Barr announced plans to resume executions that had been on hiatus since 2003 due to legal challenges to lethal injection methods, as well as shortages of one drug often used in carrying out executions in recent decades.

However, in December, the Supreme Court unexpectedly halted that plan, ruling that several newly scheduled executions should remain on hold while a federal appeals court ruled on a legal case arguing that federal executions need to closely follow state execution procedures.

The D.C. Circuit Court of Appeals largely rejected those arguments in April, and the Supreme Court issued an order late last month declining to take up the challenge. Two justices, Ruth Bader Ginsburg and Sonia Sotomayor, indicated they would have heard the case.

In the ruling lifting the most recent stay of Lee’s execution, Judge Diane Sykes flatly rejected Indianapolis-based U.S. District Court Judge Jane Magnus-Stinson’s conclusion that the victim’s family members were entitled to attend because Arkansas law requires that victim’s family members be invited.

Citing a Supreme Court decision in May in an unrelated case, Sykes said it was improper for Magnus-Stinson even to consider that argument, because the family members had not advanced it. “The judge was wrong to insert it into this case,” Sykes wrote.

Sykes also said that while federal law does require that federal executions be conducted in the same “manner” as executions in the state where the inmate was convicted, that doesn’t require federal authorities to replicate “every aspect” of the state execution procedures.

Another execution, scheduled for Wednesday at the same Indiana prison, is on hold due to a stay issued by a separate, unanimous 7th Circuit panel on July 2. Wesley Purkey, 68, was convicted for the 1998 rape and murder of a 16-year-old girl in Missouri. Purkey also dismembered, burned, and dumped her body in a septic pond, according to evidence in the case.

The appeals court panel that halted Purkey’s execution cited his claims that his lawyers failed to raise key arguments at his trial and in a post-trial challenge.

The Justice Department filed an emergency application at the Supreme Court to lift the stay in Purkey’s case so that his execution can proceed as scheduled on Wednesday.

Meanwhile, the victim's family members whom the appeals court ruled against on Sunday asked the Supreme Court Monday to step in on their behalf and reinstate the earlier decision putting off Lee’s execution.

Sykes and the other two judges who lifted the block on Lee’s execution Sunday are all GOP appointees. The three-judge panel who halted Purkey’s execution includes two Republican appointees and one Democratic appointee.

A third execution is scheduled for Friday at Terre Haute and a fourth for late next month.

In a related development, Justice Department lawyers told federal judges Sunday that a new case of Covid-19 was recently identified at the Terre Haute prison complex where the executions were to take place.

An unidentified staff member who is assigned to the prison adjacent to the penitentiary containing the execution chamber and was involved in preparations for the executions left work and went into self-quarantine Wednesday after learning some people he spent time with on the previous weekend had tested positive, a court filing said.

The male staffer received the results of a positive COVID-19 test on Saturday, Bureau of Prisons official Rick Winter said.

As a result, prison officials are segregating those who had contact with the infected staff member from all insiders and outsiders involved with the execution, Winter said.

“Between the staff member’s potential exposure and his departure on July 8, he, among other things, attended the law enforcement meeting with outside law enforcement in preparation for the scheduled executions; attended a meeting regarding the handling of demonstrators at the scheduled executions; and attended to an issue at the [Secure Confinement Unit],” Winter wrote.

“Although the staff member did not wear a mask at all times during this period, he did not come into contact with the BOP execution protocol team, which arrived the afternoon of July 8 (i.e., after the staff member had departed), nor does he recall coming into contact with any members of the Crisis Support Team … who are involved in victim witness transportation and logistics,” the prison official added.

“For the duration of the execution or until a negative test is obtained, BOP will ensure that those staff members identified as having had contact with the infected staff member do not have contact with the inmates scheduled for execution, ministers of record, witnesses of the execution, attorneys, or press,” Winter added.