Divided Supreme Court Clears Way for First Federal Execution in 17 Years

Daniel Lewis Lee waits for his Oct. 31, 1997, arraignment hearing for murder in the Pope County Detention Center in Russellville, Ark. Today Lee is 47 and sentenced to die by lethal injection after he was convicted of the 1996 killings of gun dealer William Mueller, his wife, Nancy, and her 8-year-old daughter, Sarah Powell. (Dan Pierce/The Courier via AP)

WASHINGTON (CN) — The U.S. government put to death the first federal inmate in nearly two decades Tuesday morning, executing Daniel Lewis Lee by lethal injection after the Supreme Court stepped in

A former white supremacist convicted of murdering an 8-year-old girl with her mother and stepfather in 1996, Lee was declared dead at 8:07 a.m. EST in Terrre Haute, Indiana. His last words: “I didn’t do it. I’ve made a lot of mistakes in my life but I’m not a murderer. You’re killing an innocent man,” according to a pool report.

Relatives of the victims had objected to capital punishment for Lee, pleading with President Donald Trump to grant the prisoner life without parole. Lee’s death marks the first federal execution in 17 years. 

Though a federal judge had blocked the execution from moving forward on Monday — relief upheld by the D.C. Circuit just after midnight Tuesday — the justices vacated the injunction in an unsigned order released after 2 a.m.

“The plaintiffs in this case have not made the showing required to justify last-minute intervention by a Federal Court,” the 3-page order states. “‘Last-minute stays’ like that issued this morning ‘should be the extreme exception, not the norm.”

While the order is unsigned, the court’s four liberal justices dissented from the ruling, calling the death penalty a violation of the Constitution.

Attorneys for Lee said he was strapped to a gurney for four hours before the execution.

The Justice Department blamed the delay on a last-minute procedural claim by defense counsel.

Ruth Friedman, director of the Federal Capital Habeas Project, representing Lee, said in a statement that it is shameful the government carried out the execution when Lee’s counsel was not present, and even the family of the victims objected. 

“And it is beyond shameful that the government, in the end, carried out this execution in haste, in the middle of the night, while the country was sleeping,” Friedman added. 

Attorney General William Barr has argued that Lee and the three other prisoners slated for execution — Wesley Ira Purkey and Dustin Lee Honken later this week, and Keith Dwayne Nelson on August 28 — committed horrific crimes.

“Today, Lee finally faced the justice he deserved,” Barr said in a statement Tuesday.

U.S. District Judge Tanya S. Chutkan, who granted Monday’s injunction, had found the prisoners were likely to succeed on the merits of their argument that the Justice Department violated federal law and circumvented administrative procedures when it rolled out new protocols in 2019 for federal executions. 

Chutkan found credible expert testimony that the new protocols would cause “flash pulmonary edema,” a form of respiratory distress that creates the sensation of drowning and asphyxiation resulting in “extreme pain, terror and panic.” 

The D.C. Circuit refused to stay Chutkan’s injunction pending appeal. The Supreme Court was swayed, however, by the government’s arguments that edema sets in only after a prisoner has died or lost all sensation. 

Indeed, five states had already been executing prisoners with a single-dose of pentobarbital before the Trump administration adopted the protocol, the conservative majority noted.

“Pentobarbital … has been repeatedly invoked by prisoners as a less painful and risky alternative to the lethal injection protocols of other jurisdictions,” the justices wrote, before adding that they upheld the method last year for Missouri’s execution of Russell Bucklew.

But Justice Stephen Breyer argued Lee’s case raises several problems over the death penalty when examined alongside the constitutional prohibition on cruel and unusual punishment.

“Mr. Lee was sentenced to death in 1999 and has now spent over 20 years on death row. Such lengthy delays inflict severe psychological suffering on inmates and undermine the penological rationale for the death penalty,” Breyer wrote, in a dissent joined by Justice Ruth Bader Ginsburg.

Noting that Lee’s co-defendant is serving a life sentence for the same crime, Breyer argued that the sentence given to Lee “raises real concerns about the arbitrary application of the death penalty.” 

Ginsburg also joined a dissent by Justice Sonia Sotomayor, which warns that the court has set a dangerous precedent by rushing to dispose of the case. 

“The court forever deprives respondents of their ability to press a constitutional challenge to their lethal injections,” Sotomayor wrote.

Justice Elena Kagan joined Sotomayor’s dissent as well.

In refusing to stay Chutkan’s injunction, the D.C. Circuit cited Eighth Amendment concerns with the new execution method — replacing the three-drug cocktail commonly used in states that carry out capital punishment with a single lethal dose of pentobarbital.

“Resolution of the merits of the inmates’ claim thus involves ‘novel and difficult constitutional questions’ that require ‘the benefit of further factual and legal development,’” the three-judge panel had said. 

Proffering alternative execution protocols, the four federal challengers had said they would prefer a firing squad or a two-drug protocol that uses a pain medication such as morphine or fentanyl to the single dose of pentobarbital

The family of the victims had sought to delay Lee’s execution so they could be present at the time of his death — arguing going to the federal prison amid the coronavirus pandemic posed serious risk — but the Supreme Court also rejected that appeal Tuesday. 

“It is shameful that the government saw fit to carry out this execution during a pandemic,” Friedman, Lee’s attorney, said Tuesday.

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