Editor’s Note: David Cole is the national legal director of the American Civil Liberties Union (ACLU) and a professor at the Georgetown University Law Center. The opinions expressed here are his own. Read more opinion articles at CNN.
As Americans tried to sleep Monday night — through a global pandemic, an imploding economy, and the challenge presented by structural racism and police violence in the Black community — their federal government was hard at work. The Department of Justice kept federal judges in courts, slashing through the remaining obstacles to resuming federal executions after a nearly 20-year hiatus.
At approximately 2 a.m., the government succeeded. It persuaded the Supreme Court to set aside stays of the execution of Daniel Lewis Lee and, dispensing with the legal requirement of a warrant, executed him. The final vote from the Supreme Court was 5-4, as the five who prevailed voted for a quick death over one in which all legal claims were afforded due deliberation. This breakneck turn of events represents a dangerous erosion of the protections of our Constitution.
For those who have not been following closely: this was the first federal execution in 17 years. It was also the first in the nation conducted during a deadly and highly contagious pandemic, and it can require hundreds of people to participate in the process.
Attorney General William Barr has claimed that the federal government has an obligation to restart federal executions to honor the victims, but in the case of Lee, a one-time white supremacist convicted of killing a family of three, the victim’s family members were some of the most vocal opponents of the execution. Earlene Peterson, the 81-year-old mother and grandmother of two of the victims, said in a statement last month: “As a supporter of President Trump, I pray that he will hear my message: The scheduled execution of Danny Lee for the murder of my daughter and granddaughter is not what I want and would bring my family more pain. We don’t want Danny Lee to be executed.”
The execution proceeded despite risks of Covid-19 infection among those present. This past Sunday, the Bureau of Prisons (BOP) confirmed that a staff member involved in the preparation for the execution had a confirmed case of Covid-19. The BOP admitted that the infected staff member had been working alongside other staff without wearing a mask for multiple days, when possibly infected but asymptomatic. When the staff member realized he had been exposed, he began self-quarantining on July 8 — yet the BOP did not disclose this information until July 12, just one day before Lee’s scheduled execution.
This left little to no time to determine whether other staff exposed to their infected coworker were positive for Covid-19, risking further spread at Tuesday morning’s execution. It was apparently more important to carry out this execution immediately than to do so safely — even after some of the victims’ family members unsuccessfully appealed for a stay of execution because they were afraid to travel to the prison as witnesses during the pandemic.
The risk of spreading infection was by no means the only reason to hit the pause button. On Monday, a federal district court issued a detailed opinion staying scheduled federal executions, concluding that the government’s proposed lethal injection protocol would very likely cause “extreme pain and needless suffering” — akin to drowning and asphyxiation — in violation of the Eighth Amendment prohibition on cruel and unusual punishment. The court based its opinion on “an extensive factual record,” including expert opinions and reports evaluating toxicology from prior executions using a similar lethal injection protocol, observations of witnesses to those executions, and expert conclusions that the protocol would result in “excruciating suffering.”
Shortly before midnight, the DC Circuit Court of Appeals denied the government’s motion to lift the injunction and issued an expedited briefing schedule on the government’s appeal. But at 2 a.m., five justices of the US Supreme Court voted to vacate the stay, overriding dissenters who cautioned against a rush to execution while substantial disputes about its constitutionality and cruelty remained unresolved.
By 2 a.m., the warrant for Mr. Lee’s execution, set to have taken place on July 13, had expired. Federal law strictly requires the government to carry out an execution on a date previously made public. The government pushed ahead anyway in an unprecedented and unlawful move and executed Mr. Lee on a different day than it had designated.
Mr. Lee’s execution exemplifies much of what is wrong with the death penalty. Since the last federal execution in 2003, 10 states have formally abolished this sanction. More have issued moratoriums or have refrained from using it. The trend reflects overwhelming evidence that the death penalty is racist, arbitrary, and error prone. As Justice Stephen Breyer wrote in his dissent Tuesday morning, “the death penalty is often imposed arbitrarily. Mr. Lee’s co-defendant in his capital case was sentenced to life imprisonment despite committing the same crime.”
As countless studies have shown, whether one receives the death penalty in America is more likely to turn on the quality of one’s counsel, the race of the victim or perpetrator, or the county of one’s crime than on the details of the crime itself. And yet the Trump administration, against all the evidence, is rushing to resume the practice of federal killing — and doing all it can to preclude careful judicial review of its actions.
This will not end with the lethal injection of Mr. Lee Tuesday morning. On Wednesday, the administration seeks to execute Wesley Purkey, a man whose attorneys say has schizophrenia and Alzheimer’s so severe he lacks a rational understanding of why he is being killed. The ACLU is challenging that execution on behalf of Reverend Hartkemeyer, Mr. Purkey’s Buddhist minister, who faces the untenable choice between performing his sacred duties to Wes Purkey — to whom he has ministered spiritually for 11 years — and risking a potentially fatal Covid-19 infection by traveling to the prison.
Justice Breyer closed his dissent in Mr. Lee’s case by calling for a re-examination of whether the death penalty is constitutional under any circumstances. That reckoning is certainly called for; the US is an outlier among Western democracies in continuing to insist on execution as a penalty. But at a minimum, we should not be rushing to kill human beings before their substantial legal claims can be fairly and deliberately assessed. The ultimate sanction should not be handed down in the middle of the night by a one-vote margin. Nothing requires such short-circuiting of the legal process.