Terre Haute, Indiana — A divided Supreme Court early Tuesday cleared the way for the resumption of executions of federal inmates, removingby a trial judge. But it was unclear when the first federal execution in 17 years would be carried out.
Daniel Lewis Lee had been scheduled to receive a lethal dose of the powerful sedative pentobarbital at 4 p.m. EDT Monday. But a court order preventing Lee’s execution, issued Monday morning by U.S. District Judge Tanya Chutkan, remained in place.
A federal appeals court in Washington late Monday refused the administration’s plea to step in, before the Supreme Court acted by a 5-4 vote. Still, Lee’s lawyers said the execution could not go forward after midnight under federal regulations.
With conservatives in the majority, the high court said in an unsigned opinion that the prisoners’ “executions may proceed as planned.” The four liberal justices dissented.
Two more executions are scheduled this week: Wesley Ira Purkey on Wednesday and Dustin Lee Honken on Friday.
A fourth man, Keith Dwayne Nelson, is scheduled to be executed in August.
The Bureau of Prisons had continued with preparations for Lee’s execution even as lower courts paused the proceedings.
Lee, of Yukon, Oklahoma, has had access to social visitors, has visited with his spiritual adviser and has been allowed to receive mail, prison officials said. He’s been under constant staff supervision. The witnesses for Lee are expected to include three family members, his lawyers and spiritual adviser.
He was convicted with another man, Chevie Kehoe, in Arkansas in 1999 of the 1996 killings of gun dealer William Mueller, his wife, Nancy, and her 8-year-old daughter, Sarah Powell.
Prosecutors said the slayings happened during a robbery meant to help fund the founding of a white supremacist “Aryan Peoples Republic” in the Pacific Northwest, according to Agence France-Presse. Prosecutors said wanted to steal guns they intended to sell to generate funds. Lee’s lawyers say he’s since renounced his white supremacist beliefs.
Kehoe received three life sentences without the possibility of parole.
Shawn Nolan, one of the attorneys for the men facing federal execution, said, “The government has been trying to plow forward with these executions despite many unanswered questions about the legality of its new execution protocol.”
The federal appeals court in Chicago had separately lifted an injunction on Sunday that had been put in place last week after some members of the victims’ family argued they would be put at high risk for the coronavirus if they had to travel to attend. The family on Monday appealed to the Supreme Court, which also denied the family’s claims.
The decision to move forward with the execution — and two others scheduled later in the week — during a global health pandemic that has killed more than 135,000 people in the United States and is ravaging prisons nationwide drew scrutiny from civil rights groups as well as family of Lee’s victims.
Critics argue that the government is creating an unnecessary and manufactured urgency for political gain. The developments are also likely to add a new front to the national conversation about criminal justice reform in the lead-up to the 2020 elections.
Anti-death penalty protesters began gathering in Terre Haute on Monday. Organizer Abraham Bonowitz drove a van through the city with a sign emblazoned on the side of a trailer that read “Stop executions now!”
Because of coronavirus concerns, Bonowitz said his group, Death Penalty Action, wasn’t encouraging others to show up. No more than a few dozen protesters were expected to join him.
“It’s symbolic,” Bonowitz said about the protests. “We are just here to say that this is wrong.”
In an interview with The Associated Press last week, Attorney General William Barr said the Justice Department has a duty to carry out the sentences imposed by the courts, including the death penalty, and to bring a sense of closure to the victims and those in the communities where the killings happened.
But relatives of those killed by Lee strongly oppose that idea. They wanted to be present to counter any contention that it was being done on their behalf.
“For us it is a matter of being there and saying, ‘This is not being done in our name; we do not want this,'” said relative Monica Veillette.
The federal prison system has struggled in recent months to contain the exploding number of coronavirus cases behind bars. There are currently four confirmed coronavirus cases among inmates at the Terre Haute prison, according to federal statistics, and one inmate there has died.
Barr said he believes the Bureau of Prisons could “carry out these executions without being at risk.” The agency has put a number of additional measures in place, including temperature checks and requiring witnesses to wear masks.
But on Sunday, the Justice Department disclosed that a staff member involved in preparing for the execution had tested positive for the coronavirus, but said he had not been in the execution chamber and had not come into contact with anyone on the specialized team sent to handle the execution.
The three men scheduled to be executed this week had also been given execution dates when Barr announced the federal government would resume executions last year, ending an informal moratorium on federal capital punishment as the issue receded from the public domain.
Executions on the federal level have been rare and the government has put to death only three defendants since restoring the federal death penalty in 1988 – most recently in 2003, when Louis Jones was executed for the 1995 kidnapping, rape and murder of a young female soldier.
In 2014, following a botched state execution in Oklahoma, President Obama directed the Justice Department to conduct a broad review of capital punishment and issues surrounding lethal injection drugs.
The attorney general said last July that the Obama-era review had been completed, clearing the way for executions to resume.