Priests Defeated in Lawsuit to Delay Executions During Covid-19

Protesters against the death penalty gather in Terre Haute, Ind., on Wednesday. (AP Photo/Michael Conroy)

WASHINGTON (CN) — When the Supreme Court declined Thursday in a 5-4 split to halt the second of three federal executions planned for this week, the Reverend Seigen Hartkemeyer was ready with not one but two masks. 

The Buddhist priest was in the death chamber wearing a face mask and surgical mask when Wesley Ira Purkey, 68, succumbed to lethal injection at 8:19 a.m. EDT in Terre Haute, Indiana. 

“This is an extremely important spiritual relationship and this is the ultimate moment of need for the prisoner,” Heather Weaver, senior staff attorney at the ACLU’s Program on Freedom of Religion and Belief, said in an interview following Thursday’s execution. 

In the same federal prison facility on Friday afternoon, the Reverend Mark O’Keefe, a Catholic priest, plans to take the risk of contracting Covid-19 to administer last rites to Dustin Lee Honken, a drug kingpin convicted for the 1993 murders of five people.

O’Keefe’s attorney Edward C. Wallace said, while the Trump administration has forced his client to face the deadly disease, a lawsuit filed this month ended in the Justice Department going farther than ever before to respect the religious rights of a death-row inmate. 

“The administration of last rites does involve physical touching; there is administration of oils and such,” Wallace said in an interview Friday morning. “I believe they’re allowing that to occur and they’re allowing it to occur very close to the moment [of death].”

Asked about possible exposure to coronavirus for the 64-year-old O’Keefe, given the respiratory disease’s rapid spread through federal prisons, Wallace had said on Thursday: “If he has to take the risk, I think he’s prepared to take it.”

That morning before dawn, the Supreme Court rejected a petition to hear the two spiritual advisers’ case. O’Keefe and Hartkemeher’s defeat followed back-to-back 5-4 rulings in a separate case to let the government execute three federal inmates across four days — the first of their kind in nearly two decades. 

As alleged in Hartkemeyer’s July 2 complaint, which O’Keefe joined days later, the Trump administration’s reinstatement of capital punishment for federal inmates while the coronavirus pandemic continues to surge has forced the priests to choose between abandoning their religious duties or risking exposure to the deadly disease. 

Wesley Ira Purkey, center, is escorted by police officers in Kansas City, Kan., after his 1998 arrested in connection with the death of 80-year-old Mary Ruth Bales. Purkey was also convicted of kidnapping and killing a 16-year-old girl and executed this week in Terre Haute, Ind. (Jim Barcus/The Kansas City Star via AP)

Like Purkey, the prisoner whom he ministered to for 11 years, Hartkemeyer is 68 and, with his history of lung problems, is in a high-risk group for complications if exposed to Covid-19.

“The Trump administration only cares about religious freedom when it’s convenient for them, or when it will score political points,” the ACLU’s Weaver said Thursday. 

The Justice Department had argued the risk of contracting Covid-19 in the Federal Correctional Institution, Terre Haute, for both Hartkemeyer and O’Keefe was minimal if they chose to attend the executions.

“Well if freedom of religion means anything, why do you have to take even a minimal risk of contracting Covid in order to practice your religion?” Wallace said. 

Attorney General William Barr has previously emphasized that the four federal inmates scheduled to die received full and fair trials for crimes that were gruesome. On Friday, the Justice Department said that face masks will be provided ahead of Honken’s execution, and all attendees will be required to wear them during the entire procedure. Prison staff will also check temperatures, and anyone registering over 100.4 Fahrenheit will not be permitted to enter, a spokesperson for the agency added.

“Additionally, to the extent practical, social distancing of 6 feet should be exercised,” the spokesperson said in an email.

That coronavirus is spreading within the medium-security prison is not in dispute: Last month, the Bureau of Prisons reported eight positive cases and one death. A prison employee who was involved in preparations for this week’s executions also tested positive for Covid-19 in recent weeks.

As a Zen Buddhist, Hartkemeyer had said that it was important that Purkey, executed Thursday, be at peace at the moment of death “to release his attachment to this life with minimal distress.” 

“It’s vital that I be there, as Wes’ priest, to ensure this peaceful transition from life to death during his most dire moment of distress — his ultimate crisis — as he sits at the threshold of death,” the priest wrote on the day the complaint was filed in federal court this month. 

Five Catholics sit on the Supreme Court — Chief Justice John Roberts and Justices Samuel Alito, Brett Kavanaugh, Sonia Sotomayor and Clarence Thomas all identify with the faith — while Justice Neil Gorsuch was raised Catholic but attends an Episcopalian church. The remaining three justices, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, are Jewish.

Had the priests secured a writ of certiorari, O’Keefe’s attorney Wallace said, the high court could consider the constitutionality of the government proffering an urgent need to carry out the executions during the pandemic.

Dustin Honken is led by federal marshals to a waiting car after the second day of jury selection of his 2004 federal trial in Sioux City, Iowa. The Iowa drug kingpin execution is scheduled for Friday, July 17, 2020. (Tim Hynds/Sioux City Journal via AP, File)

O’Keefe plans to enter the execution chamber with Honken at 4 p.m. EDT Friday to administer last rites, a practice of sacraments believed to open the door to eternity when administered just before death. 

“Very sophisticated people hear that and say, ‘Oh, maybe people don’t really mean that,’” Wallace said. “The pope means it. I suspect the Supreme Court justices who are true Catholics believe it, and certainly Dustin and Father O’Keefe believe it.” 

Calls for President Donald Trump to grant clemency to Honken have echoed in the upper ranks of the Catholic Church. Cardinal Joseph Tobin, Archbishop of Newark, New Jersey — who previously held the position in Indianapolis, during which time he made several visits to see Honken in prison — emphasized how the death-row prisoner’s faith has grown since Father O’Keefe began ministering to him. 

“Killing Mr. Honken will do nothing to restore justice or heal those still burdened by these crimes,” Tobin wrote on July 9. “Instead, his execution will reduce the government of the United States to the level of a murderer and serve to perpetuate a climate of violence which brutalizes our society in so many ways.”

The plea followed a similar request from all four Catholic bishops from Iowa, where Honken’s crimes occurred, for Trump to commute the prisoner’s sentence and grant him life imprisonment without parole. Less than a week later, more than 1,000 faith leaders called for the Trump administration to delay the executions of all three men scheduled to die in July.

“As our country grapples with the Covid-19 pandemic, an economic crisis, and systemic racism in the criminal legal system, we should be focused on protecting and preserving life, not carrying out executions,” the Christian, Jewish and Buddhist leaders said in a statement.

Daniel Lewis Lee was the first federal inmate to go to the execution chamber on Tuesday, after a 17-year hiatus on the use of capital punishment by federal authorities. Convicted of murdering an 8-year-old girl with her mother and stepfather in 1996, his last words were: “I didn’t do it. I’ve made a lot of mistakes in my life but I’m not a murderer.”

The family of Lee’s victims had also pleaded with Trump to spare the inmate from the death penalty, arguing the execution would in no way honor their loved ones. 

“She wouldn’t want it and I don’t want it,” Earlene Peterson said of her deceased daughter in a video message to the president last year. “That’s not the way it should be. That’s not the God I serve.”

Disputes over Purkey’s execution also arose as the District Court weighed whether to hold a hearing on his mental competency. The inmate was convicted on federal charges of kidnapping and killing a 16-year-old girl, and also found guilty by a state jury of murdering an 80-year-old woman. Attorneys for the inmate claimed that Alzheimer’s disease, schizophrenia and brain damage had deteriorated his mental health to the point where he no longer understood why he was sentenced to die.

“Wes had no rational understanding that the government planned to kill him for a crime he committed years ago, even though, before dementia exacerbated his cognitive decline, he had expressed profound remorse for his crime,” Purkey’s attorney, Rebecca Woodman, said in a statement following his death on Thursday.

Protesters against the death penalty gather in Terre Haute, Ind., on Wednesday. (AP Photo/Michael Conroy)

O’Keefe and Hartkemeyer’s lawsuit, filed in the U.S District Court for the Southern District of Indiana, played out rapid fire alongside several appeals in Washington where the three federal inmates and a fourth scheduled to die next month brought claims that the Trump administration’s plans to carry out the death sentences violated federal law. 

The petitioners had argued that new federal execution protocols announced by Barr last year — using a single lethal dose of the drug pentobarbital — circumvented administrative procedures and infringed on their Eight Amendment rights. 

“I fear that because of the bunching of all the cases, the individual religious freedom issues were not maybe fully understood,” Wallace said, referring to the priests’ First Amendment lawsuit shot down by the Seventh Circuit and rejected this week by the Supreme Court.

Corinna Lain, a University of Richmond law professor and expert on lethal injection, said the government buys pentobarbital from companies with secret supply chains that operate under less stringent Food and Drug Administration regulations. 

In a last-minute appeal Thursday afternoon, attorneys for Honken argued that the pentobarbital — manufactured by so-called compounding pharmacies rather than traditional drug suppliers — posed an unjustified risk of subpotency that could cause significant pain. The D.C. Circuit rejected the motion for stay of execution pending appeal just after 3:30 a.m. EDT on Friday. 

“These are by definition risky drugs,” Lain said, explaining South Dakota botched its first state execution carried out by an injection of pentobarbital because the lethal chemical contained fungus.

All four of the Supreme Court liberal justices dissented Thursday as a conservative majority overturned a federal judge’s temporary block on the executions. 

Justice Breyer warned the problems that arose from pending claims by the petitioners suggested an issue not with the courts but with capital punishment itself. 

Sotomayor, in a dissent joined by Breyer, Ginsburg and Kagan, wrote that proceeding with the execution at the eleventh hour “casts a shroud of constitutional doubt over the most irrevocable of injuries.”

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