TERRE HAUTE, Ind. (CBSDFW.COM/AP) — The federal government was planning to carry out the first federal execution in nearly two decades on Monday, but it won't be happening. Hours before the execution of Daniel Lewis Lee a judge ordered a new delay in federal executions.
U.S. District Judge Tanya Chutkan said there are still legal issues to resolve and that "the public is not served by short-circuiting legitimate judicial process."
The executions, pushed by the administration, would be the first carried out at the federal level since 2003.
Chutkan said the inmates have presented evidence showing that the government's plan to use only pentobarbital to carry out the executions "poses an unconstitutionally significant risk of serious pain."
Chutkan said the inmates produced evidence that, in other executions, prisoners who are given pentobarbital suffered "flash pulmonary edema," which she said interferes with breathing and produces sensations of drowning and strangulation.
The inmates have identified alternatives, including the use of an opioid or anti-anxiety drug at the start of the procedure or a different method altogether, a firing squad, Chutkan said.
The Justice Department immediately appealed to the U.S. Court of Appeals for the District of Columbia Circuit.
Lee, of Yukon, Oklahoma, was scheduled to die by lethal injection at a federal prison in Indiana. He was convicted in Arkansas of the 1996 killings of gun dealer William Mueller, his wife, Nancy, and her 8-year-old daughter, Sarah Powell.
"The government has been trying to plow forward with these executions despite many unanswered questions about the legality of its new execution protocol," said Shawn Nolan, one of the attorneys for the men facing federal execution.
The execution was to be carried out after a federal appeals court lifted an injunction on Sunday that had been put in place last week after the victims' family argued they would be put at high risk for the coronavirus if they had to travel to attend the execution. The family on Monday appealed to the Supreme Court.
The decision to move forward with the execution -- and two others scheduled later in the week -- during a global health pandemic that has killed more than 135,000 people in the United States and is ravaging prisons nationwide, drew scrutiny from civil rights groups and the family of Lee's victims.
It has been criticized as a dangerous and political move. Critics argue that the government is creating an unnecessary and manufactured urgency around a topic that isn't high on the list of American concerns right now. It is also likely to add a new front to the national conversation about criminal justice reform in the lead-up to the 2020 elections.
In an interview last week, Attorney General William Barr said the Justice Department has a duty to carry out the sentences imposed by the courts, including the death penalty, and to bring a sense of closure to the victims and those in the communities where the killings happened.
But relatives of those killed by Lee strongly oppose that idea. They wanted to be present to counter any contention that it was being done on their behalf.
"For us it is a matter of being there and saying, `This is not being done in our name; we do not want this,'" said relative Monica Veillette.
The relatives would be traveling thousands of miles and witnessing the execution in a small room where the social distancing recommended to prevent the virus' spread is virtually impossible. The federal prison system has struggled in recent months to contain the exploding number of coronavirus cases behind bars. There are currently four confirmed coronavirus cases among inmates at the Terre Haute prison, according to federal statistics, and one inmate there has died.
Barr said he believes the Bureau of Prisons could "carry out these executions without being at risk." The agency has put a number of additional measures in place, including temperature checks and requiring witnesses to wear masks.
On Sunday, the Justice Department disclosed that a staff member involved in preparing for the execution had tested positive for the coronavirus, but said he had not been in the execution chamber and had not come into contact with anyone on the specialized team sent to the prison to handle the execution.
The victim's family hopes there won't be an execution, ever. They've asked the Justice Department and President Donald Trump not to move forward with the execution and have long asked that he be given a life sentence instead.
The three men scheduled to be executed this week had been scheduled to be put to death when Barr announced the federal government would resume executions last year, ending an informal moratorium on federal capital punishment as the issue receded from the public domain. A fourth man is scheduled to be put to death in August.
The Justice Department had scheduled five executions set to begin in December, but some of the inmates challenged the new procedures in court.
Executions on the federal level have been rare and the government has put to death only three defendants since restoring the federal death penalty in 1988 — most recently in 2003, when Louis Jones was executed for the 1995 kidnapping, rape and murder of a young female soldier.
In 2014, following a botched state execution in Oklahoma, President Barack Obama directed the Justice Department to conduct a broad review of capital punishment and issues surrounding lethal injection drugs.
The attorney general said last July that the Obama-era review had been completed, clearing the way for executions to resume. He approved a new procedure for lethal injections that replaces the three-drug combination previously used in federal executions with one drug, pentobarbital. This is similar to the procedure used in several states, including Texas, Georgia and Missouri, but not all.
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