This morning the Supreme Court declined to stop the first federal executions to take place since 2003.
Attorney General William Barr announced last year that the federal government would be restarting federal executions, scheduling five convicted murderers who had been sitting on death row for years. The executions were originally scheduled for the end of 2019 and beginning of 2020, but the defendants have been challenging the process in court.
At issue here was the means by which the men would be executed. The Federal Death Penalty Act requires that executions be carried out in “the manner prescribed by the laws of the State within which the sentence is imposed.” If a state doesn’t have execution protocol, then the Justice Department can choose another state’s protocol for execution.
But in July 2019, when Barr announced he would restart executions, the Department of Justice revised its protocols to use the drug pentobarbital for executions rather than the home state’s drug protocols. Four of the men scheduled for executions then sued, arguing that this change violated the law. Last November, a judge for the U.S. District Court for the District of Columbia temporarily enjoined the executions while the arguments could be heard.
The defendants also petitioned the Supreme Court for an emergency stay. The Court declined at the time, but it directed lower courts to hear the appeal “with appropriate dispatch.”
In April, a panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled against the men in a complicated, technical 2–1 decision that essentially gives the Justice Department a little more leeway in how it mimics the execution protocols of the state where the defendant was convicted. Essentially, if a state uses lethal injection and the state statute doesn’t insist on a particular drug, the Department of Justice has the power to choose a drug itself.
The defendants then turned again to the Supreme Court, asking it both to hear the case and to grant a stay of the executions while it did so. The Court denied both requests today by turning down Bourgeois v. Barr. Justices Ruth Bader-Ginsburg and Sonia Sotomayor indicated they would have heard the arguments.
This may well mean the end for these defendants. Daniel Lewis Lee is the first scheduled for execution, on July 13. Lee was convicted of murdering a family of three—William Mueller, Nancy Mueller, and their 8-year-old daughter, Sarah Mueller—and dumping them in an Arkansas bayou in 1999. Not exactly a crime that should inspire calls for mercy, and nobody seems to be disputing Lee’s involvement. But the plot’s alleged ringleader, Chevie Kehoe, was sentenced to life in prison. After that sentencing, then prosecutors went hard against Lee to get him the death penalty.
Since Barr announced the relaunching of federal executions, relatives of Lee’s victims—including Earlene Peterson, the mother of William and grandmother of Sarah—have come out in opposition to Lee’s execution. The lead prosecutor and the trial judge have both stated that the death sentence is unjust here, given Kehoe’s life sentence, and that Lee should get life in prison instead.
None of that is relevant to the technical arguments before the Supreme Court, but it is relevant to Barr’s insistence that he is restarting executions because the Department of Justice “owe[s] it to the victims and their families to carry forward the sentence imposed by our justice system.” That doesn’t seem to be what the victims’ family actually wants here.
Two days after Lee’s scheduled execution, it will be Wesley Ira Purkey’s turn. He was convicted in federal court in 2003 of raping and murdering a 16-year-old girl and dumping her body in a septic bond. Two days after Purkey’s execution, Dustin Lee Honken is scheduled for death. He was convicted in 2004 of shooting and killing five people, including two children.
So the federal government goes from having absolutely no executions in more than 15 years to three of them over the course of five days. In August, Keith Dwayne Nelson, who pleaded guilty in 2001 of kidnapping and murdering a 10-year-old girl in Kansas City, Kansas, is scheduled for execution.
Two other men Barr had listed to execute are not currently on the schedule. Lezmond Mitchell, convicted in 2003 of murdering a woman and her 9-year-old granddaughter, is currently in the midst of appealing his execution over claims of anti–Native American bias. And the man for whom this lawsuit is named, Alfred Bourgeois, is also not currently re-scheduled for execution. He was convicted in 2004 of torturing, molesting, and murdering his 2-year-old daughter. He is fighting the execution on grounds that he’s intellectually disabled, and a federal judge stayed his execution in March so the courts can analyze these claims.