Supreme Court Clears Way for Second Federal Execution in Two Decades

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July 16, 2020

Convicted child rapist and murderer Wesley Purkey was put to death on Thursday morning, over half a day after his execution was scheduled thanks to what one judge called the "procedural gamesmanship" of his legal counsel.

In an opinion issued in the early hours of the morning for the second time this week, the Supreme Court's conservative majority voided the stays imposed on Purkey's execution by an Obama-appointed U.S. District Court judge, Tanya Chutkan, who has played a thorn in the side of the Trump administration since it began its efforts to restart the federal death penalty last year.

Indiana District Court Judge James R. Sweeney II then denied another appeal by Purkey's lawyers, writing in a brief opinion that Purkey's decision to file first in the District of Columbia before an apparently sympathetic judge—what Sweeney called a "calculated forum choice"—allowed him to artificially delay the carrying out of his sentence through an "abuse of the writ" of habeas corpus.

This back-and-forth typifies the heated debate in the federal judiciary, and within national politics, over the death penalty. As both Purkey's death and the execution of white supremacist and convicted murderer Daniel Lewis Lee on Tuesday show, capital cases now drag on for decades—and often come to an end amid a flurry of last-minute filings, designed, depending on one's view, either to ensure justice or unjustly delay it.

Purkey's double appeal "violates the principle that 'we ought not to have a procedural system where challenges to a conviction go on endlessly,'" Sweeney wrote, citing the dissenting opinion of Justice Stephen Breyer in the Supreme Court's vacatur—a line Breyer had used in arguing that the interminable procedural shenanigans characteristic of modern death penalty defense were in fact reason for an end to the practice of capital punishment.

Purkey's death is the second federal execution in a week—a third, quintuple-murderer Dustin Lee Honken, is scheduled for Friday. Purkey was sentenced to death for the 1998 rape and murder of 16-year-old Jennifer Long; he was separately given a life sentence for the murder of 80-year-old Mary Ruth Bales, whom he beat to death with a claw hammer.

The execution was delayed, however, by last-minute claims that Purkey, 68, was incompetent to be put to death due to his long-standing schizophrenia and developing dementia. These illnesses, his counsel argued, ran afoul of constitutional prohibitions on executing those who could not reasonably understand why they were being executed.

Those arguments earned the support of the Supreme Court's four liberal justices, who joined a dissent from Thursday morning's order authored by Justice Sonia Sotomayor. Yet Purkey offered several cogent statements before his death Thursday morning, according to a Terre Haute, Indiana-based Tribune-Star reporter, including saying that he "deeply regret[s] the pain and suffering I caused Jennifer’s family. I’m deeply sorry."

The Department of Justice said in a statement just an hour after Purkey's death that "just punishment has been carried out."

"After many years of litigation following the death of his victims, in which he lived and was afforded every due process of law under our Constitution, Purkey has finally faced justice," DOJ spokesperson Kerri Kupec said.

Purkey's death is part of the Department of Justice's project of restarting the federal death penalty, which has lain dormant since 2003. More than 60 people remain on federal death row, several of whom were sentenced as far back as 1993.

Such an extended period of time served is now typical for death row detainees: The average person put to death in 2017 had been incarcerated for more than 20 years. Purkey had been on death row for 16-and-a-half years. Justice Breyer cited this extended stay as reason to doubt the constitutionality of the death penalty; his opinion did not mention that, per Judge Sweeney, the interminable appeals process was largely the choice of Purkey's own counsel.

A third and federal execution is scheduled for Friday with a fourth, Keith Nelson—who kidnapped, raped, and murdered a 10-year-old girl in a forest by a church—due in August. That may, however, be the last such execution for some time. Presumptive Democratic nominee Joe Biden, who supported the death penalty until July 2019, has made federal abolition a plank in his criminal justice reform platform.

Biden has been publicly silent on the federal executions overseen by 2020 opponent President Donald Trump. But other prominent Democrats, including Biden proxy Pete Buttigieg, publicly called for death penalty abolition in the wake of the death of Lee on Monday. Thursday is likely to bring a similar round of calls.