Rushed Federal Executions Show Contempt, Not Respect, For the Rule of Law | Opinion

Over the course of five days in the middle of July, the federal government killed three prisoners. The circumstances surrounding these executions—the first federal executions since 2003—should raise our collective alarm bells.

The Death Penalty Information Center, for which I serve as Executive Director, takes no position whether there should or shouldn't be a death penalty. But if the federal government is to have one, we believe it should be administered fairly, consistently, in a nondiscriminatory manner, in furtherance of clear federal interests, and in scrupulous adherence to the law. Unfortunately, that has not historically been the case, and the government's conduct in scheduling and carrying out these executions blatantly disregarded these principles.

The government raced to conduct executions in cases in which it knew litigation was pending on numerous critical issues, leaving the courts with insufficient time to resolve the issues and guaranteeing chaotic last-minute litigation that would undermine the legitimacy of any court decision to let the executions proceed. That is not what we would expect from an administration that respects the rule of law or the integrity of the judicial process.

The administration claimed to be pursuing justice in the names of victims' families, but ran roughshod over the wishes of the family of Nancy Mueller and her 8-year-old daughter Sarah Powell. The family believed that executing Lee would dishonor Nancy and Sarah. The unfairness of the sentences weighed on them. The government's own evidence showed that Lee did not kill Sarah. Yet the co-defendant who did and masterminded the crime got a life sentence. The trial judge and trial prosecutor too thought this inequity was arbitrary and unfair. An administration that cared about victims or fairness would not have ignored their pleas for clemency and would not have insulted them by calling their efforts to postpone Lee's execution until after the pandemic "frivolous."

Federal prosecutors claimed to be diligently carrying out the law. But no administration that cared about acting carefully, properly, and with concern for corrections personnel would schedule three executions for five days after conducting no executions for 17 years. 28 corrections officials had warned the administration about the trauma to corrections personnel and the magnified risk of problematic executions that its reckless schedule created. The administration didn't care.

And it cared even less for public health. Whether one supports the death penalty or not, no one has to carry out an execution—let alone three in a week—during the worst life-threatening pandemic in more than a century. In a facility in which COVID-19 was already present. By an execution preparation team that included at least one member who tested positive for the virus. In circumstances that guaranteed witnesses would be confined together for hours, waiting, because of the government's gamesmanship in creating last-minute litigation. No administration that is concerned about public health and safety, that values the individual lives and health of everyone involved in the execution process, their families and their communities, that takes the coronavirus seriously, would even consider doing this.

Almost every death-penalty state in the nation has recognized this fact, putting off the already dwindling number of executions in the country, knowing that health risk they create can be avoided simply by delaying executions until the pandemic abates. And in Missouri and Texas, where one execution each has taken place since April, cases of COVID-19 among prisoners and employees in the facilities that housed the execution chambers have increased. We will never know whether this was coincidental, or whether this was caused by bringing together large numbers of individuals in enclosed spaces for an extended period of time, as an execution demands. But it was a risk easily avoided.

In the run-up to the executions themselves, the government left no doubt about its disrespect for public health or its frontal assault on the rule of law. It sandbagged the federal courts with an execution schedule that led to two different middle-of-the-night rulings from the United States Supreme Court vacating injunctions that would have allowed the prisoners to pursue significant legal issues surrounding their executions, and would have assured the legality and constitutionality of the executions. It fought vigorously to defeat lawsuits filed by victims' family members and the prisoners' spiritual advisors asking to delay the executions until they could attend without risking their lives. The government then put two of the prisoners to death in the early morning hours, after the originally selected execution dates had passed, while other appeals remained pending. They gave literal lip service of notice to the prisoners that their executions had been immediately rescheduled, and provided defense counsel no notice at all or any chance to respond before executioners injected lethal chemicals into the prisoners' veins.

Governments should not break or bend the law in their efforts to carry out the law. Prior administrations of both parties respected the integrity of the legal process and the importance of a judicial declaration that the federal execution process was lawful and constitutional before attempting to put prisoners to death. These death warrants, however, were designed to prevent meaningful judicial review. And other than a grade-B movie villain, who stands over a prisoner strapped to an execution gurney, reads him a note saying we are going to kill you now, and claims it has provided legally valid notice?

The death penalty is serious business. It is an awesome power that requires equally awesome fidelity to our constitutional values. Yet every corner cut and every public interest ignored in the headlong pursuit of executions now, underscored the unmistakable fact that we were watching the death penalty weaponized for political ends.

As public support for the death penalty declines, as fewer and fewer Americans believe it is fairly applied, as a record low believe it is morally acceptable, and more and more believe that alternative punishments are preferable, Americans of all faiths and political leanings increasingly ask whether it is too powerful a tool, too irrevocable a punishment, to trust to the hands of government. For many, the federal executions may have provided an answer.

Robert Dunham is the Executive Director of the Death Penalty Information Center

The views expressed in this article are the author's own.​​​​​