The Machinery of Death: The Federal Death Penalty’s Reinstatement is Arbitrary, Capricious, Illegal, and Cruel
Introduction
In the early hours of July 14th, 2020, while most people were asleep or just starting their days, the Federal Government executed Daniel Lee Lewis, jumpstarting the return of federal executions. The federal government executed Mr. Lee despite myriad procedural and legal deficiencies. Mr. Lee was executed without a new warrant allowing the execution to occur on July 14th. His warrant listed July 13, 2020 as the execution date. Mr. Lee was strapped to the gurney for over four hours as last-minute legal issues were resolved but was pronounced dead less than an hour after his final legal issue was resolved. The loved ones of the victims publicly opposed his execution and were disregarded in their efforts to witness the execution without compromising their health in the midst of a global pandemic.
In many regards, Mr. Lee was a typical capital defendant. Prior to his conviction, his life was riddled with trauma, mental illness, and interactions with the juvenile detention centers. There was widespread consensus that his co-defendant was more culpable and Mr. Lee maintained his innocence in the murders through his last words. His trial had sentencing problems and concerns about ineffective assistance of counsel.
When Mr. Lee’s execution date was handed down in June 2020, three more dates were scheduled for July 15, 2020; July 17, 2020; and August 28, 2020. If all four of these executions are carried out, the number of federal executions will more than double. Mr. Lee’s execution was only the fourth federal execution since 1988. The last person federally executed, Louis Jones, was killed nearly two whole decades before, on March 18, 2003. The other two people executed by the federal government, Timothy McVeigh and Juan Garza, were executed in 2001.
Despite the profound length of time since Louis Jones’s execution was carried out, Attorney General William Barr announced intentions to reignite the federal “killing machine” in 2019, including new lethal injection protocols for the method of execution, using a single drug protocol involving phenobarbital. The Department of Justice set execution dates in December 2019 and January 2020 for five federal death row prisoners. The prisoners filed suit challenging the new lethal injection protocol as unlawful and unconstitutional and the executions were blocked by a preliminary injunction in the D.C. District Court on November 20, 2019. In December 2019, the Supreme Court denied Barr’s efforts to vacate the injunction and directed the D.C. Circuit Court of Appeals to “review the decision on the merits before the executions are carried out”, adding that it encouraged the court to do so promptly. In June 2020, the preliminary injunction was vacated in the D.C. Circuit Court of Appeals and the Department of Justice promptly scheduled the four executions slated for this summer. Mr. Lee, the first of the executions, was given 28 days’ notice of his execution.
The federal death penalty and Mr. Lee’s execution exemplify big problems with capital punishment and how it is implemented in the United States. The death penalty is notorious for error, infringing on capital defendants’ constitutional rights, racism, socioeconomic inequality, and delay. Much has been written on many of these issues. While it is outside of the bounds of this piece to be comprehensive of every issue raised, the piece will discuss a few of the problems exemplified by the federal death penalty. Ultimately, what is needed is a close consideration of whether or not the death penalty is something with which our country should still be engaged, a question that Justices Breyer and Ginsburg have called for publicly in dissents over the last few years.
1. “Struck by Lightning” – The Federal Death Penalty is Arbitrary and Capricious
As Justice Stewart wrote in his opinion in Furman v. Georgia, “death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” Justice Stewart’s concerns in 1972 about the then-existing capital punishment schemes that arbitratrily and capriciously subjected individuals to the death penalty still exist in the implementation of state and federal capital punishment. Federal death sentencing shows the randomness of those receiving death, with massive geographic disparities in the parts of the country from which federal death sentences are originating.
The federal death penalty is rarely exercised and even more rarely carried all the way through execution. As of July 16, 2020, there are only 60 individuals on federal death row: 59 men and 1 woman. The Federal Bureau of Prisons has 151,162 incarcerated individuals as of July 4, 2020. Federal death row constitutes 0.0004% of this population. Since 1988, only 79 individuals have been sentenced to federal death row, with nearly half of the sentences coming out of offenses in Texas, Missouri, and Virginia, three jurisdictions that also implement capital punishment at the state level. The selection of federal cases in which death is sought has been criticized publicly for being racially disparate and politically motivated. The same concerns about capriciousness are seen in the way that those selected for execution are also arbitrarily chosen. Federal executions have largely been weaponized for political agendas. The announcement of the four summer 2020 executions of men convicted for offenses involving the death of children was likely made to inspire outrage about these crimes and garner public support for a rarely-used process.
2. Execution Warrant Requirements and Notice to Counsel
In order for an execution to be carried out, every death jurisdiction requires a death warrant to be issued naming the date, method, and location of execution. The warrant is effective, generally, up until midnight on the specified day. If the execution has not occurred by that point, usually because of ongoing court proceedings or some problems in effectively carrying out the execution, a new warrant must be sought to execute that individual. Without a valid warrant, carrying out an execution is illegal.
The purpose of the warrant is to provide notice to the individual and their counsel of the upcoming execution so that they might avail themselves of challenges to their sentence or execution that might legally be available. For instance, it is unconstitutional to execute someone who is incompetent at the time of their execution under Ford v. Wainwright. Ford claims do not become ripe for litigation unless there is an effective death warrant in place. While there was no Ford litigation in place for Mr. Lee’s execution, there were Ford concerns being litigated in Mr. Purkey’s case. Mr. Purkey was scheduled to be executed on July 15, 2020 but was granted a preliminary injunction for further competency evaluation on July 15, 2020, which was upheld by the appellate court. Purkey’s final attempts to block his execution focused on his history of dementia, Alzheimer’s, schizophrenia, and a history of trauma, conditions that make it hard for him to rationally understand the reasons for his execution. At 2:45 AM on July 16, 2020, the Supreme Court lifted the stay in place because of Mr. Purkey’s Ford claim, permitting his execution to move forward. In a powerful dissent, Justice Sotomayor stated, “proceeding with Purkey’s execution now, despite the grave questions and factual findings regarding his mental competency, casts a shroud of constitutional doubt over the most irrevocable of injuries.” Mr. Purkey was executed at 8:19 AM on July 16, 2020, without an effective warrant and before his Ford claim had been substantively considered by a court.
Mr. Lee’s warrant named July 13, 2020 as the date for his execution. Earlier that day, the D.C Court preliminarily enjoined the government from carrying out his execution, and the D.C. Court of Appeals upheld this injunction. Midnight passed before the Supreme Court issued its 5-4 ruling vacating the preliminary injunction. At 2:30 AM on July 14, 2020, after the Supreme Court’s opinion, the government moved forward with the execution proceedings, filing an emergency motion to lift a technical stay in place, which was granted around 7 in the morning. Mr. Lee was executed 31 minutes after that issue was resolved, without a new warrant allowing the execution to occur on July 14th. Mr. Lee was strapped to the gurney for over four hours as the last-minute, post Supreme Court legal issues were resolved. A number of pending legal proceedings related to the execution of Mr. Lee were still ongoing. His counsel, not present because of the ongoing coronavirus pandemic, were not notified until the execution of their client had been completed.
3. Victims’ Rights
The victims’ loved ones in Mr. Lee’s case were vocal in their adamantly opposition to death as a possible penalty in his case. The common belief is that prosecuting authorities seeking death are doing so at the behest of honoring the victims and their loved ones. Attorney General Barr even invoked this messaging in his announcement that “We owe it to the victims and their families to carry forward the sentence imposed by our justice system.” This continues to be proven wrong. Victims of violent crime commonly do not want violent responses to the harm they have suffered. In capital cases, many are adamantly opposed to the death penalty in their case or others. Victims may be treated without dignity or respect in capital-related proceedings. Unfortunately, this happened in Mr. Lee’s execution.
Despite their opposition to Mr. Lee’s execution, Earlene Peterson, Kimma Gurel, and Monica Veillette all wished to travel to witness Mr. Lee’s death, even beginning third-party legal action to stall the execution until a time where they could safely travel without medical concerns raised by the coronavirus pandemic. The United States Department of Justice argued against the women’s right to be present, despite longstanding history and tradition across death jurisdictions allowing victims, should they desire, to witness executions. The Seventh Circuit lifted the injunction issued by the lower court saying that despite authorization allowing the victims to be present, they had no official statutory or regulatory right to be present that would be enforceable in a court, disregarding serious health concerns arising from attending. The Supreme Court denied their application for a stay without explanation at 2:30 AM on July 14th.
Conclusion
Mr. Lee’s case was typical of many death cases in the United States, riddled with concerns about actual innocence, problems at sentencing, ineffective assistance of counsel, and added concerns of federal prosecutors seeking death against the interests of both the victims and the local state prosecutors, who could have sought death themselves. The added back-door, early morning execution as a means of avoiding scrutiny only heightened these problems. While this is by no means a comprehensive discussion of the many problems with the machinery of death in the United States, nor does it fully address the many aspects of the problems discussed, it does draw attention to something that those interacting with capital punishment since its reinstatement have made clear: capital punishment is riddled with errors that are hard to disentangle, subjecting largely poor individuals with experiences of trauma and mental illness to our most severe punishment. As Justice Blackmun declared in his dissent in Callins v. Collins, after over 20 years on the Court attempting to get rid of the many problematic aspects of capital punishment while leaving the practice in place, “From this day forward, I no longer shall tinker with the machinery of death.” This happens in conjunction with public opposition to the death penalty rising. It seems evident that our country would do best in following Justice Blackmun’s lead.
About the Author: Rosalind Major is a rising third-year at Cornell Law School. Before law school, Rosalind attended Davidson College, studying Gender and Sexuality Studies. Rosalind is passionate about capital and criminally long sentencing post-conviction work and trauma-informed legal defense work. At Cornell, Rosalind has been involved in the Capital Punishment Clinic and the Women’s Decarceration Practicum. This summer, Rosalind is interning at a Capital Habeas Unit.
Suggested Citation: Rosalind Major, The Machinery of Death: The Federal Death Penalty’s Reinstatement is Arbitrary, Capricious, Illegal, and Cruel, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (July 17, 2020), https://live-journal-of-law-and-public-policy.pantheonsite.io/the-machinery-of-death-the-federal-death-penaltys-reinstatement-is-arbitrary-capricious-illegal-and-cruel/.