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The DOJ Has No Reason to Execute the Federally Incarcerated During a Pandemic

The federal government is now killing prisoners after a 17-year hiatus on federal executions.

Anti-death penalty activist Art Laffin of Journey of Hope demonstrates in front of the U.S. Justice Department's Robert F. Kennedy Building on July 13, 2020, in Washington, D.C.

As the federal government ratchets up the “machinery of death” this week, as executioners on death row in Terre Haute, Indiana, begin to kill condemned prisoners after a 17-year hiatus on federal executions, a grim reality-check is in order. Every reason the Trump administration has offered to defend and justify the timing of its plan has been undermined by facts that show the callousness of what the government wants to do and why it wants to do it. It’s shoddy business, even by the low standards of this Justice Department.

“We owe it to the victims and their families to carry forward the sentence imposed by our justice system,” the Justice Department argued when it announced the resumption of federal executions last June. But relatives of the victims of Daniel Lewis Lee, one of the men the feds put to death this week, consistently told federal lawyers that they didn’t want Lee killed in their name. Here’s one wrenching plea to stay the execution, from the mother of one of Lee’s victims, offered up last fall after the feds announced their plans:

“Yes, Daniel Lee damaged my life, but I can’t believe taking his life is going to change any of that. I can’t see how executing Daniel Lee will honor my daughter in any way. In fact, it kinda, like, dirties her name because she wouldn’t want it and I don’t want it. That’s not the way it should be.”

How exactly does this statement square with the Justice Department’s view that it must kill the condemned to honor his victims? We don’t know. The feds didn’t say before they executed Lee Tuesday after the Supreme Court, in the middle of the night, sanctioned the killing. This administration, like so many state administrations, seems to honor the wishes of family members of murder victims only when they support capital punishment. Meanwhile, President Trump and Attorney General William Barr completely ignored the pleas of hundreds of relatives of murder victims who asked the feds not to gear up the federal death penalty at all.

The family torn asunder decades ago by Lee’s crimes also objected to the timing of the executions, arguing that they should not have had to risk their own health, and perhaps contract Covid-19, by having to travel to a federal prison in Indiana to watch Lee die. On Friday, a federal judge agreed and stayed the execution. Did the Justice Department relent? No. Within hours the feds appealed to try to get Lee killed on schedule, regardless of the public health concerns for the families or prison staff. Again, the Supreme Court agreed.

The executions proceeded even after federal prison officials confirmed over the weekend that one of the employees involved in preparing for the week’s executions in Terre Haute has tested positive for Covid-19 No need to delay the killing, the feds blithely said, since the infected worker had not been in the execution chamber and had no contact with members of the specialized execution team. The news came within days of a study that suggests that people in prison are 5.5 times more likely to get Covid-19 than people not behind bars.

Another argument the Justice Department has made to justify the resumption of executions is that the government has a moral obligation to mete out duly authorized punishment both as a means of deterrence and retribution. That it’s a bad argument, undermined by empirical research, doesn’t stop it from routinely being cited by prosecutors and judges. But one of the condemned men the feds wants to kill this week is Wesley Purkey, whom medical experts say is suffering both from diagnosed cases of schizophrenia and Alzheimer’s disease.

While the Supreme Court has persistently refused to bar the execution of those suffering from mental illness, the Eighth Amendment precludes the execution of someone who cannot rationally understand what is happening to him. The Constitution also precludes the execution of someone whose intellectual disabilities are so profound so as to render them incapable of understanding the circumstances of their punishment. Where does Purkey fit in? Do you want the government killing an Alzheimer’s patient in your name?

During capital trials it is common for prosecutors and judges (and often defense attorneys) to remind jurors that they serve as the “conscience of their communities.” The idea is that there is supposed to be a collective response to the murderous taking of life. What does the community of Terre Haute say about the killing spree the feds are implementing this week? An editorial in a local newspaper last week offered one obvious view: After a 17-year delay what’s the rush? Why not wait until the coronavirus is under control?

Those are questions the Justice Department has refused to answer. They are questions the Bureau of Prisons has failed to answer. And they are questions the Supreme Court refused to answer in the middle of the night when it issued an extraordinary 5-4 ruling authorizing the resumption of federal executions without resolving legitimate legal questions raised by attorneys for the condemned. For all the talk of Chief Justice John Roberts’ moderating influence on the court these days, when it comes to capital punishment he is no moderate. He is instead, like Justice Alito and Thomas, a judge who has lost patience with execution delays.

Even the manner of the planned executions are complicated and worrisome and warranted further judicial review. Last week, for example, Reuters reported that the Trump administration has been secretly stockpiling pentobarbital, the lethal drug the feds have chosen to use to kill condemned prisoners. That the feds felt compelled to sneak around the way they did — hiding their intentions even from the companies with which they were working — ought by itself to give pause to the executions. How about an investigation into this shady work before the drugs flow this week?

We’ve been inundated in the past few months with examples of the ways in which Barr wants more respect for religion in public life — and in the instruments of government. He’s told us over and over again about how America has failed to properly respect tribunes of the Word. Tell that story of faith and duty and honor to Father Mark O’Keefe, a 64-year-old Catholic priest, who fears for his life if he has to come to the federal prison in Terre Haute this week to give last rites to Dustin Lee Honken, who is scheduled to be executed Friday.

And tell it to Dale Hartkemeyer, a 68-year-old Buddhist priest who ministers to the spiritual needs of the aforementioned Purkey. Hartkemerer also is medically vulnerable and worries he will be exposed if he has to go into a prison this week. The Justice Department’s choice to go ahead with this week’s executions as Covid-19 cases soar around the country constitutes deliberate indifference to the health and safety of these religious figures. Something to think about the next time Barr preaches about the grace of God in American life.

None of these objections, religious or otherwise, matter to Barr and President Trump, of course. The entire purpose of the execution exercise is to be able to say to Trump’s base on the campaign trail this fall that the president proved again that he is “tough on crime.” If the condemned are executed, it’s good news for Trump. If the federal prisoners are spared by the courts, it’s good news for Trump because he can claim (without basis) that he was thwarted by “radical judges” of the sort Joe Biden will appoint if he wins in November.

I covered in person the federal execution of Oklahoma City bomber Timothy McVeigh, who was killed on June 11, 2001, a hot, muggy day in Terre Haute. There was little suspense or ambiguity. McVeigh was guilty beyond all doubt. He had given up his federal appeals. He suffered from no mental illness and had been ably represented at trial by lawyers with unlimited resources. There was no pandemic or questions about secret lethal drugs. If there were family members of victims begging to spare McVeigh’s life I don’t remember them.

Those circumstances do not exist today. The men selected to be killed this week by the federal government indeed have been convicted of horrific crimes. No one is claiming that they are innocent. But no one is claiming that the nation’s public safety, or public health, would be harmed if they were allowed to continue to live on federal death row. The government had the moral burden here, if not the legal one, to justify why the middle of an out-of-control deadly pandemic is the right time to be killing in the name of the people. No such justification was offered by Barr, or Trump, or the Supreme Court, because no such justification exists.

The views expressed are the author’s own and not necessarily those of the Brennan Center.

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