By Mark Berman,
A judge on Monday blocked the Justice Department from resuming federal executions this week, setting up a new front in the myriad legal challenges to the Trump administration’s push to start carrying out capital punishment after a nearly two-decade hiatus.
The Justice Department’s plan to move forward with the first federal executions since 2003 has led to numerous court battles between the government and death-row inmates, their spiritual advisers and even relatives of victims in one case.
In an order Monday, U.S. District Judge Tanya S. Chutkan of the District of Columbia wrote that she was blocking the executions — including three set to take place this week — saying it was necessary to let legal challenges to the government’s lethal-injection protocol play out in court.
The inmates have argued the protocol is unconstitutional, and Chutkan wrote that “the public interest is not served by executing individuals before they have had the opportunity to avail themselves of the legal process to challenge the legality of their executions.”
An attorney for the death-row inmates praised the decision, while the Justice Department quickly appealed it to both the U.S. Court of Appeals for the D.C. Circuit and the Supreme Court. The department wrote in a filing that extensive preparations were already underway and Chutkan’s order served “to scramble those plans with a meritless injunction.”
Chutkan blocked the Justice Department last year from resuming executions in December as it had originally planned, issuing an injunction on separate grounds also relating to the lethal-injection protocol. A panel of the U.S. Court of Appeals for the D.C. Circuit said earlier this year that the executions could proceed, and the Supreme Court declined to take up a challenge to the protocol last month.
The Justice Department has defended its plans to resume executions by citing the need to carry out lawful death sentences and emphasizing the nature of the crimes as well as the victims and their loved ones. In recent days, though, the department has fought in court against relatives of victims in the first case with a scheduled execution.
Federal officials set Daniel Lewis Lee’s lethal injection for Monday afternoon at a federal penitentiary in Indiana. Lee and another man were convicted in 1999 of murdering a family of three — including an 8-year-old, Sarah Powell, and Nancy Mueller, her mother.
Lee and the other man, Chevie Kehoe, were part of a group intending to create a white supremacist community in the Pacific Northwest, according to court records. They traveled to Arkansas in 1996 and robbed and murdered William Mueller, a firearms dealer, as well as his wife and their daughter, sealing plastic bags over their heads before throwing them into a bayou, the records show.
Also scheduled to be executed this week were Wesley Purkey, who was convicted in 2003 of raping and murdering Jennifer Long, a teenage girl, and Dustin Lee Honken, who was convicted in 2004 of killing five people, including two young girls.
In a statement last month scheduling their executions, Attorney General William P. Barr said: “We owe it to the victims of these horrific crimes, and to the families left behind, to carry forward the sentence imposed by our justice system.”
Some of those family members in Lee’s case have spoken out against his death sentence and the timing of his execution amid the coronavirus outbreak.
Three of Nancy Mueller’s relatives — including Earlene Peterson, her mother; Kimma Gurel, her sister; and Monica Veillette, her niece — went to court last week seeking to have Lee’s execution delayed.
They said scheduling it during the pandemic forced them to choose between witnessing it and protecting their health. All three have health issues, they said.
“What is happening now is very illogical,” Gurel said in an interview over the weekend. “They shouldn’t be doing these executions during a pandemic and expecting us to travel. It is our right to be there and experience this ending, whatever it ends up being.”
The Justice Department wrote in court filings that it took their perspectives “seriously, in accordance with their terrible loss and distinctive perspective” but said it was not required to factor in “the availability and travel preferences of those attending the execution when scheduling it.”
The department also described efforts it was making to protect the relatives and other witnesses, including providing protective equipment.
A federal judge in Indiana last week blocked Lee’s execution, siding with the relatives in their case, but that was lifted Sunday by a three-judge panel of the U.S. Court of Appeals for the 7th Circuit, which wrote that “they have no statutory or regulatory right to attend the execution.” The three relatives appealed to the Supreme Court on Monday.
The relatives oppose Lee’s execution, arguing that it is unfair he was sentenced to death while Kehoe was given a life sentence.
“We’ve never advocated for Daniel Lee getting out of prison completely,” Veillette said. “But we have consistently said we want this sentence to be fair.”
The federal judge who presided over the trial and the lead prosecutor have also spoken out against Lee’s death sentence, writing letters years later saying that Kehoe was the leader and Lee his follower. The judge wrote years later that “justice was not served in this particular case, solely with regard to the sentence of death imposed on Daniel Lewis Lee.”
But the relatives said they still felt obligated to attend his execution.
“It’s certainly not something I want to watch,” Veillette said. “But I think for me, when something is being done in our family’s name or my name . . . the least I can do is bear witness to it and be present and have a voice saying, ‘This is not being done in my name.’ ”
After the appeals court said Sunday the execution could proceed, Veillette said that she, her mother and grandmother had decided not to attend, given the health risks. She also said that by the time the appeals court’s order came down saying the execution could occur the next day, it was too late for them to travel as initially planned.
Lee had initially faced a December 2019 execution date, but that and others were blocked by the court challenges over the lethal-injection protocol. Barr had announced the protocol in July 2019 when he unveiled the department’s plans to resume executions.
The Justice Department’s push to restart executions marked a break with national trends in the death penalty, which is largely handled on the state level. The overwhelming majority of death-row inmates are held by states, and nearly all executions in the modern era have been carried out by state officials.
Since the Justice Department last carried out an execution in 2003, the landscape around capital punishment has also shifted. Executions and death sentences have both declined significantly, public support for capital punishment has fallen and more states have abolished the practice entirely. State have struggled to obtain drugs, with pharmaceutical firms opposing the use of their products to carry out death sentences, in some cases going to court to fight against it.
The Trump administration’s goal of resuming executions has also played out more recently against a backdrop of a country gripped by both a pandemic and protests against racial injustice, much of it focused on law enforcement practices.
Ruth Friedman, an attorney for Lee, has pointed to these demonstrations, saying in a statement that “even as people across the country are demanding that leaders rethink crime, punishment, and justice, the government is barreling ahead with its plans to carry out the first federal executions in 17 years.”
Other court challenges also remain for the executions scheduled to take place this week. Purkey’s execution, set for Wednesday, was separately and temporarily stayed by an appeals court, which the Justice Department is challenging at the Supreme Court.
Mental health organizations have called for Purkey’s execution to be called off, saying he “lives with schizophrenia, dementia and Alzheimer’s disease” and should be sentenced instead to life in prison without parole.
The Rev. Seigen Hartkemeyer, a 68-year-old Buddhist priest and spiritual adviser to Purkey, has also gone to court asking that the execution be delayed. Hartkemeyer wrote in court filings that due to the coronavirus, his health could be endangered if he attends, so he is being forced to “decide whether to risk his own life in order to exercise his religious obligations to be present.”
Mark O’Keefe, a Roman Catholic priest, joined that case and made a similar argument, saying he is the spiritual adviser for Honken, who is scheduled to be executed Friday. O’Keefe has said the government is burdening his exercise of religion.
The Justice Department pushed back against their arguments, saying they are not being forced to attend the executions and will be provided with protective equipment to wear if they go to the prison. It has also compared his potential attendance to priests visiting coronavirus-stricken patients in hospitals.
“Any risks he accepts by choosing to attend Mr. Honken’s execution are the result of Father O’Keefe’s own choice, not the Government’s coercion,” the department wrote in response, adding later: “Despite the pandemic, the Government still must carry out its important duties.”