Conduct Unbecoming: The Resumption of Federal Executions

This post was written by UB Law Prof. John Bessler.

Not since 2003, when an African-American man, Louis Jones, Jr., was put to death, has the federal government carried out an execution. In the coming days, though, the Trump administration’s Department of Justice (DOJ), led by Attorney General William Barr, plans to change that by once again putting to use the federal execution chamber at the U.S. Penitentiary in Terre Haute, Indiana.

Barr, on July 25, 2019, had previously directed the federal Bureau of Prisons to schedule five executions, three of which were later scheduled for mid-July of this year. In the midst of the coronavirus pandemic, the U.S. government made plans to execute three men—Daniel Lee, Wesley Purkey, and Dustin Honken—in quick succession, a plan reminiscent of when Arkansas, in 2017, planned to execute eight men over the course of just 11 days. “I am devastated by the prospect of exposing myself and others to the risk of COVID-19 infection because the U.S. government chooses to execute Dustin and others in the midst of this pandemic,” laments Rev. Mark O’Keefe, a moral theology professor at Indiana’s St. Meinrad Seminary and the 64-year-old spiritual advisor to Dustin Honken.

Professor John Bessler

Prof. John Bessler

The DOJ’s decision to schedule executions while coronavirus cases spike around the country is, obviously, totally at odds with public health concerns. In fact, three plaintiffs—Earlene Peterson, Kimma Gurel, and Monica Veillette, all members of Mr. Lee’s victims’ families who had been selected by the warden of the U.S. Penitentiary in Terre Haute to attend the execution, later sought to enjoin Mr. Lee’s execution on the basis that Barr and two other defendants had violated the Administrative Procedure Act by scheduling Mr. Lee’s execution during the COVID-19 pandemic, without adequate measures in place to protect them.

On July 10, 2020, Jane Magnus-Stinson, the Chief Judge of the U.S. District Court for the Southern District of Indiana, granted the plaintiffs’ motion for a preliminary injunction “to the extent that the Court enjoins the defendants from carrying out the execution of Daniel Lewis Lee on July 13, 2020, or on any future date, pending final resolution of the merits of this case or until further order of this Court.”

On July 12, however, the U.S. Court of Appeals for the Seventh Circuit quickly vacated that preliminary injunction, thus clearing the way for Lee’s execution, even though a prison staffer involved in preparing for the execution recently tested positive for coronavirus. Although the Seventh Circuit, on July 2, temporarily stayed Purkey’s July 15 date of execution pending the completion of proceedings in the Seventh Circuit, the Department of Justice filed an emergency application before the U.S. Supreme Court seeking to lift that stay so that Purkey’s execution can also proceed as scheduled on July 15.

Of course, with capital punishment, much more is at stake than just public health considerations. Although the Constitutional Court of South Africa, in the post-apartheid era, declared capital punishment to be unconstitutional way back in 1995, and while more than 70 percent of the world’s countries have now either abolished or no longer use executions, and while a string of American states (New Mexico, 2009; Illinois, 2011; Connecticut, 2012; Maryland, 2013; New Hampshire, 2019; and Colorado, 2020) have jettisoned capital punishment in recent years, the U.S. government seeks to execute Lee on July 13, Purkey on July 15, and Honken on July 17.

If carried out, these executions would run counter to the American and global trend opposing the death penalty’s use, with the world’s anti-death penalty movement led by groups such as the World Coalition Against the Death Penalty, Together Against the Death Penalty (Ensemble contre la peine de mort), and the International Commission Against the Death Penalty. In the U.S., the death penalty has already been declared unconstitutional by some state supreme courts, with some governors having also imposed a moratorium on executions in their states.

In Europe, the death penalty is already outlawed, with two protocols to the European Convention on Human Rights (Protocol Nos. 6 and 13) barring the use of executions in peacetime and wartime, respectively. With America’s closest neighbors, Canada and Mexico, no longer authorizing capital punishment, the United States—in continuing to carry out state-sanctioned executions—has been left in the uncomfortable company of countries such as China, Egypt, Saudi Arabia, Iran, Iraq, North Korea, and Yemen.

Back in 2000, then-U.N. Secretary General Kofi Annan—after receiving a petition signed by 3.2 million people demanding an end to capital punishment, a petition delivered by anti-death penalty activist and Dead Man Walking author Sister Helen Prejean, Amnesty International representatives, and members of the Rome-based interfaith group, the Sant’ Egidio Community—had this to say on the subject: “The forfeiture of life is too absolute, too irreversible, for one human being to inflict it on another, even when backed by legal process. And I believe that future generations, throughout the world, will come to agree.”

Almost 50 years ago, in Furman v. Georgia (1972), the U.S. Supreme Court declared death sentences to be unconstitutional, though American executions resumed in 1977 with Gary Gilmore’s execution in Utah after the Supreme Court reversed course, issuing its decision in Gregg v. Georgia (1976), which allowed the resumption of U.S. executions. Since then, the Supreme Court has permitted the death penalty’s use in a series of hotly contested cases, although in Glossip v. Gross (2015), the 5-4 decision narrowly upholding the constitutionality of Oklahoma’s lethal injection protocol, Justice Stephen Breyer authored a strongly-worded dissent against capital punishment—a dissent joined by Justice Ruth Bader Ginsburg that systematically described the death penalty’s many fatal flaws.

As Justice Breyer wrote in that dissent: “Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.” The number of American death sentences and executions has dwindled dramatically in recent years, making the death penalty’s administration more arbitrary than ever.

With the U.N. General Assembly having voted multiple times for a global moratorium on the use of executions, and with a number of countries (including Mongolia in 2017) having recently abandoned capital punishment, the death penalty has come under intense public scrutiny in recent decades, including for the way in which it is administered. With U.N. officials and others having described the death penalty’s use as torturous in nature, and because an immutable characteristic of any death penalty regime, in fact, is that it involves the use of credible death threats, the Trump administration’s plan to resume federal executions not only runs contrary to the worldwide trend against capital punishment, but it is unbecoming for the U.S. DOJ and America’s criminal justice system.

Study after study has shown that the death penalty is administered in a highly arbitrary and discriminatory fashion, that scores of innocent people have been sentenced to death after being wrongfully convicted, and that the death penalty’s use violates fundamental human rights. Indeed, executions run afoul of the concept of human dignity, which is referenced in the very first article of the Universal Declaration of Human Rights (1948) and which has been described as a “touchstone” of the Eighth Amendment—the provision of the U.S. Constitution which prohibits “cruel and unusual punishments.” Capital charges, the imposition of death sentences, and the scheduling of executions all involve the government making credible threats of death that are torturous in nature, and in the 21st century, it is more important than ever to remember that the U.S. Department of Justice, in its work, should be seeking justice and the equal protection of the laws, not the arbitrary execution of offenders.

John Bessler is a professor at the University of Baltimore School of Law. He is the author of several books on capital punishment, including Cruel and Unusual: The American Death Penalty and the Founders’ Eighth Amendment (2012) and The Death Penalty as Torture: From the Dark Ages to Abolition (2017). His most recent books are The Celebrated Marquis: An Italian Noble and the Making of the Modern World (2018), a biography of the eighteenth-century Italian philosopher Cesare Beccaria, and The Baron and the Marquis: Liberty, Tyranny, and the Enlightenment Maxim That Can Remake American Criminal Justice (2019), which focuses on the need for criminal justice reform. His 2019 Northeastern University Law Review article, “Taking Psychological Torture Seriously: The Torturous Nature of Credible Death Threats and the Collateral Consequences for Capital Punishment,” highlights the torturous nature of death sentences and executions.



About University of Baltimore School of Law

The University of Baltimore School of Law provides a rigorously practical education, combining doctrinal coursework, intensive writing instruction, nationally renowned clinics and community-based learning to ensure that its graduates are exceptionally well prepared to practice law.
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