Early on Tuesday morning, while much of the country was still asleep, the federal government executed its first death-row prisoner in 17 years. We are among the lawyers who represented the prisoner who was killed, Daniel Lee.
Make no mistake: The circumstances of Mr. Lee’s execution are a vivid illustration of the serious problems with the Trump administration’s reckless push to bring back the federal death penalty.
On Monday morning, a federal court in Washington, D.C., concluded that the most current scientific evidence before it “overwhelmingly” demonstrated that the administration’s lethal-injection procedures most likely violated the Eighth Amendment, which prohibits “cruel and unusual” punishment. The court said the evidence showed that prisoners executed using the government’s chosen execution drug were at a serious risk of experiencing an excruciating sensation akin to drowning as their airways fill with foam. So the court put a halt to Mr. Lee’s execution, which was scheduled for Monday at 4 p.m. It also halted two other federal executions planned for later this week and one next month. A unanimous D.C. Circuit panel upheld the injunction and set aside a highly expedited briefing schedule for the government’s appeal.
Instead of disputing the court’s findings through the ordinary judicial process, however, the Department of Justice took the highly irregular step of asking the Supreme Court for an emergency order that would allow the executions to proceed without further judicial review.
On Tuesday morning at approximately 2 a.m., 10 hours after Mr. Lee’s scheduled execution time, the Supreme Court issued a 5-to-4 decision overruling both the District Court and the D.C. Circuit and allowing the execution to proceed. Over separate dissents by Justices Stephen Breyer and Sonia Sotomayor, the Supreme Court concluded that the prisoners were not entitled to “last-minute intervention” — even though there was nothing “last-minute” about their request. The prisoners sought relief shortly after Attorney General William Barr announced a year ago that he intended to execute them. As Justice Sotomayor explained in her dissent, the Supreme Court’s rushed ruling “overlooked” Supreme Court practice and amounted to an abdication of the court’s “role in safeguarding robust federal judicial review.”
The Justice Department’s request for emergency relief was of a piece with this administration’s aggressiveness in short-circuiting the ordinary course of review and seeking relief directly from the Supreme Court. But that tactic carried unusually serious consequences here: As Justice Sotomayor noted, the dangers “are particularly severe” in death-penalty litigation because “the grant of the government’s emergency application” inflicts “the most irreparable of harms without the deliberation such an action warrants.”
The government’s haste to execute Mr. Lee, however, didn’t stop there. Within minutes of the Supreme Court’s decision, the Department of Justice rescheduled his execution — for 4 a.m. the same morning — and summoned media and witnesses back to the prison in the dark of night. But there was another problem: A court order halting the execution from a federal court in Arkansas still remained in place. After struggling to contact officials on site before the execution, Mr. Lee’s lawyers were finally able to remind them of that order around 4 a.m.
The Justice Department initially maintained that the court order presented no impediment to executing Mr. Lee, a position reflecting remarkable disregard for a coequal branch of government. As 4 a.m. came and went, however, the Justice Department — under the threat of contempt sanctions — decided to file an emergency motion to lift the court order blocking the execution.
Over the four hours it took for the government to pursue these ends, Mr. Lee remained strapped to a gurney — with IV lines in his arms, according to a witness — as a court decided his fate. Around 8 a.m., about 30 minutes after a federal court lifted the last ruling barring his execution, while multiple motions seeking a stay of the execution remained pending in federal court, and without any notice to counsel that the execution was occurring, Mr. Lee was put to death. He was executed nearly 15 hours after he was first scheduled to be strapped down inside the execution chamber. And media accounts suggest that he did not die immediately when the lethal injection was administered, potentially suffering from the very complication identified in his Eighth Amendment challenge.
The Department of Justice’s rush to conduct this execution makes plain its indifference to the basic rights of prisoners like Mr. Lee and to the ordinary judicial process that typically constrains the government in matters of life or death. Indeed, the consequences of this administration’s execute-at-any-cost approach were laid bare once again on early Wednesday morning, less than 24 hours after Mr. Lee was put to death, when a federal court concluded that another of his outstanding challenges to his execution was likely to be meritorious. A unanimous D.C. Circuit panel upheld that ruling. Ultimately, following yet another “emergency” request from the government, the Supreme Court rejected that claim with another order issued in the middle of the night, clearing the way for the execution of a second prisoner, Wesley Purkey. But the government did not wait for that order to issue in Mr. Lee’s case. He had already been executed.
It is shameful that the government saw fit to carry out this execution during a pandemic, even after a government employee involved in preparing for the execution at the prison tested positive for the coronavirus. It is shameful that the government saw fit to carry out this execution when the prisoner’s counsel could not be present with him and without notifying counsel during the execution itself. And it is shameful that the government saw fit to carry out this execution in haste, in the middle of the night.
Whatever one’s views of justice or capital punishment, this doesn’t look like fairness or decency.
The facts of Mr. Lee’s case further underscore the flaws in the government’s unyielding efforts to impose the death penalty. The government has long claimed that the death penalty is necessary to vindicate the interests of victims’ families. But it ignored that family members of Mr. Lee’s victims opposed his execution. Moreover, as Justice Breyer explained in his dissent, Mr. Lee’s death sentence was arbitrarily imposed: His co-defendant was sentenced to life in prison even though the government described the co-defendant as the far more culpable “ringleader.”
Our experience with the first execution conducted by the Trump administration confirmed this much: Its new death-penalty regime is badly broken. Its unrelenting push to impose the federal death penalty no matter the cost poses a grave threat to the rule of law. For now, it will be up to the courts to push back against the government’s lawless execution agenda.