Justices allow second federal execution to proceed (updated)

Two days after a flurry of late-night filings culminated in an early-morning order by the Supreme Court that allowed the federal government to proceed with the first federal execution in 17 years, the justices cleared the way early Thursday morning for a second execution. In a series of unsigned orders, the court permitted the government to carry out the death sentence of Wesley Ira Purkey, who was convicted of the 1998 rape and stabbing death of 16-year-old Jennifer Long. The justices split 5-4 on the government’s request to lift an order putting the execution on hold to allow a hearing on whether Purkey was competent to be executed, with the court’s liberal bloc dissenting from the decision to allow the execution to proceed. The justices also ruled on four other requests Wednesday and Thursday to intervene in the execution – granting two requests by the government to permit the execution to go forward and denying two requests (one by Purkey and one by Purkey’s spiritual adviser, a Buddhist priest) to put it on hold.

According to news reports, Purkey was executed in Terre Haute, Indiana, at around 8 a.m. EDT.

The first order in Purkey’s case came on Wednesday afternoon, when the Supreme Court granted a request by the federal government to lift a stay of execution entered by the U.S. Court of Appeals for the 7th Circuit. Both a federal trial court and the 7th Circuit had previously rejected Purkey’s request for post-conviction relief, filed last year. Purkey sought to assert claims that his trial lawyer’s performance had been so poor that it violated his constitutional right to be represented by an attorney, but the lower courts agreed that the claims were barred under federal laws governing post-conviction relief. But on July 2, the 7th Circuit nonetheless put Purkey’s execution, which the government had scheduled for July 15, on hold to give Purkey time to fully litigate his appeals.

In a filing signed by Acting U.S. Solicitor General Jeffrey Wall, the government told the justices that the “last-minute stay” entered by the 7th Circuit “is directly contrary to the limitations that Congress imposed on” post-conviction review for federal inmates, “and this Court should not allow it to remain in place.” The government emphasized that the court of appeals did not find that Purkey was likely to win on his claims. The government added that Purkey waited until more than a month after his execution date was set last year to raise his claims, even though the facts that formed the basis for those claims were “available” since 2003.

Purkey countered that the government’s request to lift the 7th Circuit’s stay was a “desperate attempt to short-circuit the appellate process and execute” him before his claims could be considered. Moreover, he stressed, the 7th Circuit acknowledged that his claims regarding his lawyer were “serious,” and that it was “troubling” that no court had previously considered them. The court of appeals, he said, issued a stay to ensure that these claims could be litigated fully if it turned out that they were not procedurally barred. There is no reason why the government couldn’t wait a little longer until the claims were resolved, Purkey observed, but he would face “irreparable harm” – death – if the government were allowed to go forward.

While the Supreme Court was considering the government’s request to lift the stay issued by the 7th Circuit, Purkey’s lawyers obtained another stay of execution in a court several hundred miles to the east. Early Wednesday morning, U.S. District Judge Tanya Chutkan granted a motion to put Purkey’s execution on hold based on Purkey’s arguments that he was not competent to be executed because he suffered from (among other things) dementia and had a history of mental illness. Given his conditions, Purkey argued that the execution would violate the Eighth Amendment’s ban on cruel and unusual punishment because he did not understand why the government wanted to execute him. Chutkan is the same judge who issued an order on Monday morning that would have blocked four scheduled federal executions, including Purkey’s. The Supreme Court vacated Chutkan’s Monday order when it ruled that the execution of Daniel Lewis Lee could proceed on Tuesday morning.

The federal government went to the Supreme Court on Wednesday afternoon, asking the justices to block or lift Chutkan’s new stay. Dismissing Chutkan’s “last-minute injunction” as meritless, the government argued that Purkey should have filed his claim that he was incompetent to be executed in Indiana, where he was in prison, rather than in the District of Columbia. And even if Chutkan had the power to hear Purkey’s claims, the government continued, Purkey failed to show that he was likely to be found incompetent. Purkey, the government posited, “is still able to appreciate – and, indeed, accepts – that he will be executed for kidnapping, raping, and murdering Jennifer Long.”

A little over an hour later, and right around the time that Purkey’s execution had originally been scheduled to take place, the government returned to the Supreme Court with another request. This time the government asked the justices to lift a separate order, also issued by Chutkan on Wednesday morning, in a group of inmates’ challenge to the federal lethal-injection protocol. Chutkan put Purkey’s execution (as well as those of two other inmates, Dustin Honken and Keith Nelson) on hold on the ground that the protocol violates federal food and drug laws because it does not require a prescription for the pentobarbital used to execute the inmates. Chutkan’s “last-minute injunction,” the government argued, “again falls well short of the ‘extreme exception’ necessary to warrant stopping a lawful execution on the day it is supposed to occur.”

In a highly unusual move, the government also asked the justices to intervene and prohibit Chutkan from putting any of the executions on hold in the future. The government referenced Vasquez v. Harris, a 1992 ruling involving Robert Alton Harris, the first person to be executed in California since the death penalty was reinstated there. After lifting the fourth of four last-minute stays issued in Harris’ case, the Supreme Court indicated that any additional stays by the federal courts would be permitted only if ordered by the Supreme Court itself.

Within minutes after the government’s second filing of the day (and third filing altogether), and with Purkey’s execution moved back to 7 p.m. EDT, the justices granted the government’s request to lift the stay entered by the 7th Circuit. In a brief order, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan indicated that they would have denied the government’s request and allowed the stay of execution to remain in place.

Later Wednesday afternoon, a fourth stay request arrived at the court. This one came from Mark O’Keefe, a Catholic priest who plans to minister to Honken during his execution, which is scheduled for Friday, and Dale Hartkemeyer, a Buddhist priest and Purkey’s longtime spiritual advisor. O’Keefe and Hartkemeyer asked the justices to postpone the two inmates’ executions because of the COVID-19 pandemic. Otherwise, the priests – both of whom are in their 60s and therefore at a high risk for serious illness if they become infected with the virus – argued, they face a “Hobson’s choice”: carry out their religious duties or face “a grave and unacceptable risk of contracting the deadly virus.”

On Wednesday night, the U.S. Court of Appeals for the District of Columbia Circuit turned down the government’s request to lift Chutkan’s order blocking Purkey’s execution to allow a hearing on his competency to be executed. Although it acknowledged the “delay caused by the district court’s eleventh-hour order in this case,” the court of appeals concluded that it would not “punish Purkey as a result of that delay by denying him one last opportunity to be heard on all his claims.”

The D.C. Circuit also rejected the government’s request to vacate Chutkan’s order staying the executions of Purkey, Honken and Nelson to allow them to continue litigating their challenge to the lethal-injection protocol. The court of appeals conceded that the “government faces undeniable organizational complexities in orchestrating an execution.” But the “late-stage ruling,” the D.C. Circuit continued, is not the inmates’ fault, because they filed these claims nine months ago. And although the government and crime victims have an interest in seeing the sentences carried out, the court of appeals added, “[t]hat interest is served, not impaired, by allowing more than a few hours for judicial review of claims on which even the most deeply scarred human life hangs.”

A fifth and final stay request, this one from Purkey, arrived at the court around 11 p.m. EDT on Wednesday. Purkey asked the justices to put his execution on hold so that the Supreme Court could consider his claims that his trial lawyer had been ineffective – the same claims at issue in the 7th Circuit case in which the justices had already lifted the stay earlier in the day.

Shortly before 3 a.m. EDT, the Supreme Court issued a set of orders and opinions clearing the way for the government to go ahead with Purkey’s execution. In a brief unsigned order without any noted dissents, the justices granted the government’s request to lift the stay issued by Chutkan in the challenge to the lethal-injection protocol. (They did not, however, act on the government’s request to bar her from issuing any additional stays of execution.) In two other unsigned orders, they denied the requests by Purkey and his spiritual advisor to put the execution on hold.

By a vote of 5-4, the justices also granted the government’s request to lift Chutkan’s stay in the case involving Purkey’s competency to be executed. Breyer filed a dissenting opinion, joined by Ginsburg, in which he argued that Purkey’s case, like Lee’s earlier this week, displayed “serious legal defects of a kind that have long plagued the administration of the death penalty in the United States.” Breyer said these problems – such as procedural flaws, a lack of accuracy and a failure to serve the government’s interest in deterrence and retribution – have long been present in capital cases involving state inmates. The fact that they also have arisen in both federal cases this week, Breyer continued, suggests that the problems are not unique to a particular place, judge or lawyer but are instead inherent in capital punishment. “I remain,” Breyer concluded, “convinced of the importance of reconsidering the constitutionality of the death penalty itself.”

Sotomayor also filed a dissenting opinion, which Breyer, Ginsburg and Kagan all joined. She argued that the government had not met the very high bar required to lift Chutkan’s stay. “Although the Government and the family members of the victim have a legitimate interest in punishing the guilty,” Sotomayor acknowledged, “that interest must be measured against Purkey’s and the public’s interest in ensuring that such punishment comports with the Constitution.” Going ahead with Purkey’s execution now, Sotomayor wrote, “despite the grave questions and factual findings regarding his mental competency, casts a shroud of constitutional doubt over the most irrevocable of injuries.”

Update: A federal district judge in Indiana also refused to block Purkey’s execution. Purkey had filed a motion in that court early Thursday morning to stay his execution, arguing that he had “the right to have the merits of his long-pending claim” that he was not competent to be put to death “heard somewhere before he is executed.” Judge James Sweeney observed that it is “lamentable” that the “procedural gamesmanship” by Purkey’s lawyers may have prevented courts from looking at the merits of Purkey’s claims, but in an order issued early this morning he declined to intervene to stop the execution.

This post was originally published at Howe on the Court.

[Disclosure: Goldstein & Russell, P.C. (or its predecessor firm) has in the past served as counsel to Purkey, but neither the firm nor the author of this post was involved in this litigation.]