The U.S. executed Daniel Lewis Lee early this morning after federal prosecutors obtained court orders in the middle of the night allowing the first federal execution in 17 years to proceed.
Mr. Lee’s execution, originally scheduled for 4 pm yesterday, was blocked by a federal court ruling that he must be allowed to challenge the new lethal injection protocol that the federal government planned to use for the first time to execute Mr. Lee. The court found that the “scientific evidence before [it] overwhelmingly indicates that the [Government’s] 2019 Protocol is very likely to cause Plaintiffs extreme pain and needless suffering during their executions.”
An appeals court upheld that ruling late Monday, but at 2 am this morning, federal prosecutors obtained a 5-4 ruling from the Supreme Court vacating the injunction. The short, unsigned order says, “It is our responsibility to ensure that method-of-execution challenges to lawfully issued sentences are resolved fairly and expeditiously, so that the question of capital punishment can remain with the people and their representatives, not the courts, to resolve.”
The Court’s acceptance of “the Government’s artificial claim of urgency . . . sets a dangerous precedent,” Justice Sonia Sotomayor wrote in a dissent joined by Justices Ruth Bader Ginsburg and Elena Kagan. “[B]ecause of the Court’s rush to dispose of this litigation in an emergency posture, there will be no meaningful judicial review of the grave, fact-heavy challenges respondents bring to the way in which the Government plans to execute them.”
Justice Stephen Breyer, joined by Justice Ginsburg, also dissented, writing that “there are significant questions regarding the constitutionality of the method the Federal Government will use to execute [Mr. Lee]” and urging the Court to address whether the death penalty is unconstitutional.
As soon as the Court issued its order, federal prosecutors at the Department of Justice moved to re-set Mr. Lee’s execution for 4 am, calling media and witnesses back to the prison in the middle of the night, Ruth Friedman, attorney for Daniel Lee and Director of the Federal Capital Habeas Project, explained in a statement. She continued:
When it was brought to the government’s attention that a court stay still remained in place, the DOJ first maintained that that stay presented no legal impediment to executing Danny Lee, but then filed an “emergency” motion to lift the stay.
Over the four hours it took for this reckless and relentless government to pursue these ends, Daniel Lewis Lee remained strapped to a gurney: a mere 31 minutes after a court of appeals lifted the last impediment to his execution at the federal government’s urging, while multiple motions remained pending, and without notice to counsel, he was executed.
It is shameful that the government saw fit to carry out this execution during a pandemic. It is shameful that the government saw fit to carry out this execution when counsel for Danny Lee could not be present with him, and when the judges in his case and even the family of his victims urged against it. 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. We hope that upon awakening, the country will be as outraged as we are.
Both the lead prosecutor in Mr. Lee’s trial and the trial judge have expressed concerns about Mr. Lee’s death sentence. Prosecutors and the victims’ family had agreed not to seek death for Mr. Lee in the murder of Nancy, William, and eight-year-old Sarah Mueller after his co-defendant and “ringleader” of the crime, Chevie Kehoe, was sentenced to life imprisonment without parole—despite evidence showing that Kehoe killed Sarah after Daniel Lee refused to do it. But the Justice Department overruled them, and the jury sentenced Mr. Lee to death.
After Attorney General William P. Barr announced last year that the government would resume executions starting with Mr. Lee, the victims’ family asked the government to commute Mr. Lee’s sentence. “I can’t see how executing Daniel Lee will honor my daughter in any way,” Nancy’s mother, Earlene Branch Peterson, explained. “In fact, it’s kinda like it dirties her name. Because she wouldn’t want it and I don’t want it.”
The family moved last week to postpone the execution due to the coronavirus pandemic. Although they opposed the execution, they argued that they felt obligated to attend, but existing health conditions made it extremely risky for them to travel to the federal prison in Terre Haute, Indiana, to witness the execution.
“[T]he families of victims should not be put in a position where they have to risk their lives or give up their right” as a witness, Nancy’s niece, Monica Veillette, told The Washington Post. “That is not how we should be treating the families of victims in this country.”
A federal judge ordered a stay of execution last week in response to the family’s request, but an appeals court overruled that decision Sunday evening and said the execution could be carried out. By that time, it was too late for the family to travel even if they’d been willing to risk their lives to attend. The Supreme Court denied the family’s appeal without comment in its early morning orders on Tuesday.