Death Penalty

Supreme Court Won't Stop Pending Federal Executions

The federal government hasn’t executed a prisoner since 2003. We may see three killed in July.


This morning the Supreme Court declined to stop the first federal executions to take place since 2003.

Attorney General William Barr announced last year that the federal government would be restarting federal executions, scheduling five convicted murderers who had been sitting on death row for years. The executions were originally scheduled for the end of 2019 and beginning of 2020, but the defendants have been challenging the process in court.

At issue here was the means by which the men would be executed. The Federal Death Penalty Act requires that executions be carried out in "the manner prescribed by the laws of the State within which the sentence is imposed." If a state doesn't have execution protocol, then the Justice Department can choose another state's protocol for execution.

But in July 2019, when Barr announced he would restart executions, the Department of Justice revised its protocols to use the drug pentobarbital for executions rather than the home state's drug protocols. Four of the men scheduled for executions then sued, arguing that this change violated the law. Last November, a judge for the U.S. District Court for the District of Columbia temporarily enjoined the executions while the arguments could be heard.

The defendants also petitioned the Supreme Court for an emergency stay. The Court declined at the time, but it directed lower courts to hear the appeal "with appropriate dispatch."

In April, a panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled against the men in a complicated, technical 2–1 decision that essentially gives the Justice Department a little more leeway in how it mimics the execution protocols of the state where the defendant was convicted. Essentially, if a state uses lethal injection and the state statute doesn't insist on a particular drug, the Department of Justice has the power to choose a drug itself.

The defendants then turned again to the Supreme Court, asking it both to hear the case and to grant a stay of the executions while it did so. The Court denied both requests today by turning down Bourgeois v. Barr. Justices Ruth Bader-Ginsburg and Sonia Sotomayor indicated they would have heard the arguments.

This may well mean the end for these defendants. Daniel Lewis Lee is the first scheduled for execution, on July 13. Lee was convicted of murdering a family of three—William Mueller, Nancy Mueller, and their 8-year-old daughter, Sarah Mueller—and dumping them in an Arkansas bayou in 1999. Not exactly a crime that should inspire calls for mercy, and nobody seems to be disputing Lee's involvement. But the plot's alleged ringleader, Chevie Kehoe, was sentenced to life in prison. After that sentencing, then prosecutors went hard against Lee to get him the death penalty.

Since Barr announced the relaunching of federal executions, relatives of Lee's victims—including Earlene Peterson, the mother of William and grandmother of Sarah—have come out in opposition to Lee's execution. The lead prosecutor and the trial judge have both stated that the death sentence is unjust here, given Kehoe's life sentence, and that Lee should get life in prison instead.

None of that is relevant to the technical arguments before the Supreme Court, but it is relevant to Barr's insistence that he is restarting executions because the Department of Justice "owe[s] it to the victims and their families to carry forward the sentence imposed by our justice system." That doesn't seem to be what the victims' family actually wants here.

Two days after Lee's scheduled execution, it will be Wesley Ira Purkey's turn. He was convicted in federal court in 2003 of raping and murdering a 16-year-old girl and dumping her body in a septic bond. Two days after Purkey's execution, Dustin Lee Honken is scheduled for death. He was convicted in 2004 of shooting and killing five people, including two children.

So the federal government goes from having absolutely no executions in more than 15 years to three of them over the course of five days. In August, Keith Dwayne Nelson, who pleaded guilty in 2001 of kidnapping and murdering a 10-year-old girl in Kansas City, Kansas, is scheduled for execution.

Two other men Barr had listed to execute are not currently on the schedule. Lezmond Mitchell, convicted in 2003 of murdering a woman and her 9-year-old granddaughter, is currently in the midst of appealing his execution over claims of anti–Native American bias. And the man for whom this lawsuit is named, Alfred Bourgeois, is also not currently re-scheduled for execution. He was convicted in 2004 of torturing, molesting, and murdering his 2-year-old daughter. He is fighting the execution on grounds that he's intellectually disabled, and a federal judge stayed his execution in March so the courts can analyze these claims.

NEXT: Why John Roberts Joined the Supreme Court's Democratic Appointees in an Abortion Case

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  1. Why are any of these federal cases? The FBI doesn’t have enough to do that they gotta go horning in on state matters? Or are there some states where murder isn’t illegal that I don’t know about here?

    1. Oops!

      In March 2000, Purkey pleaded guilty to the murder in Wyandotte County District Court. He was handed a life sentence.

      Then in October 2001 — nearly four years after Long’s disappearance — he admitted to raping and killing her. Having transported her across the state line, a federal crime, Purkey hoped he could serve his life sentence in what he deemed to be a more comfortable federal prison rather than a state prison.

      In November 2003, a jury in the U.S. District Court for the Western District of Missouri found Purkey guilty of kidnapping a child resulting in the child’s death. Prosecutors sought the death penalty.

      And of course Shackelford cherry picks statements from the friends and family of the victims.

      Long’s childhood friend Michelle McDaniel has long helped keep Long’s memory alive, working last year to get a memorial bench established for her along a walking trail in Independence.

      “I’m all for it,” McDaniel said of resuming the execution. “I know it’s not possible, but if he was reintroduced to society there is obviously no rehabilitation for him. I think you have to be willing to participate in rehabilitation and he has proven, repeatedly, that he is not. If they said it was going to be life in prison, I would be fine with that also, because I feel like he’s still punished.

      But I feel like, for him, the death penalty is more appropriate.”

    2. Bourgeois faces federal execution because his crime occurred on a naval base.

    3. The Feds got a crack at Keith Dwayne Nelson because he kidnapped his victim and took her across state lines.

    4. Lezmond Mitchell fell under federal jurisdiction for carjacking his victims.

      1. Carjacking? Because the car was made in another state? Federal funds helped pay for the road?

        1. In 1992, Congress, in the aftermath of a spate of violent carjackings (including some in which the victims were murdered), passed the Federal Anti-Car Theft Act of 1992 (FACTA), the first federal carjacking law, making it a federal crime (punishable by 15 years to life imprisonment) to use a firearm to steal “through force or violence or intimidation” a motor vehicle that had been shipped through interstate commerce. The 1992 Act, codified at 18 U.S.C. § 2119, took effect on October 25, 1992. However, only a small number of federal prosecutions were imposed for carjacking the year after the act was enacted, in part because many federal carjacking cases were turned over to state prosecutions because they do not meet U.S. Department of Justice criteria. The Federal Death Penalty Act, part of the Violent Crime Control and Law Enforcement Act of 1994, an omnibus crime bill, made sixty new federal crimes punishable by the federal death penalty; among these were the killing of a victim in the commission of carjacking.

          1. I guessed they would use something like that as the FYTW. They could have simply said any crime that uses anything that has any impact to interstate commerce (everything) is a federal crime.

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          2. >>a spate of violent carjackings

            was mocked in the Brady Bunch Movie. “yes this is a car but my name’s not Jack, it’s Greg”

        2. Because the car once traveled in interstate commerce prior to the carjacking. Or maybe it was the weapon he used.

          DOJ policy is that if a tool used by a criminal in the commission of a crime at some time in the past traveled in interstate commerce, that is enough for federal jurisdiction to attach under the commerce clause.

          Literally: Burgler robs a house using a crowbar to pry open the door. The crowbar traveled in interstate commerce before the burgler bought it. Therefore the burglary is a federal crime.

          1. And if you make your own crowbar, you deprived the interstate market of commerce, so it is still a federal crime.

            1. Making your own crowbar wouldn’t be enough.

              You have to mine the ore and smelt it yourself, all within the boundaries of a single state. Oh, and you need to do the same for the mining tools, smelter, and the blacksmith tools you use to forge the crowbar.

              You’d have to make your own stone tools and work your way up through the bronze and iron age.

              1. If you manage all that, only then will they need to bring in the “you deprived the interstate market of commerce” argument.

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    5. As for Daniel Lewis Lee, I can’t find a reason for federal jurisdiction. He is a White Supremacist, so maybe there’s some sort of terrorism or violation of civil rights.

      1. Murder in furtherance of Racketeering. 18 U.S.C. § 1959.

        The Feds really didn’t like the Kehoe brothers’s little group.

      2. See my comment above about commerce clause jurisdiction based on the tools used to commit a crime having traveled in interstate commerce.

  2. Give em a long walk and a short drop.

  3. All three will be considered coronavirus deaths.

    1. The lockdowns failed these poor souls. If only we had managed to flatten the curve.

  4. This article further confirms my longstanding theory that there is an outsized number of notorious criminals with “lee” or “earl” in their name.

    1. Let’s not forget “Wayne”.

    2. All I can hear is “systemic racism”.

  5. not a supporter of state-sanctioned killing.

    1. Same, but some people are just dogshit, and I don’t like paying for their upkeep.

  6. Surprised this article didn’t bring up the issue of the executive branch of the federal government not following the guidelines of federal courts from 2003 until 2020. If a federal judge sentences someone to death, isn’t it an abuse of power for the Justice Department at the direction of the President to then simply say “nope, the legislature may have duly passed death sentencing in federal cases and a federal judge may have sentenced this person to die after a jury trial, but we’re going to ignore that because the President doesn’t personally believe in the death sentence”. It reminds me of the Andrew Jackson quote “John Marshall has made his decision; now let him enforce it!”

    I’m not saying I necessarily believe in the death penalty, and I’m completely unsurprised that an ostensibly libertarian magazine is against it, but it seems to me the “executive discretion vs. judicial decision” angle is obvious, but they chose to not mention it once in this article.

    1. “isn’t it an abuse of power for the Justice Department at the direction of the President to then simply say “nope, the legislature may have duly passed death sentencing in federal cases and a federal judge may have sentenced this person to die after a jury trial, but we’re going to ignore that because the President doesn’t personally believe in the death sentence””

      Not necessarily. If Congress didn’t specify that the execution must happen with in a specified time of sentencing, then is is not beyond the discretion of the administration to schedule the execution for the third Tuesday after the 4th of Never.

      1. Oh I definitely agree with what you’re saying, and there is probably no exact guideline or rule being broken by the executive, but it’s definitely something where the spirit of the law is being ignored.

        If your wife asks you to take the trash out, and you respond with “Yeah I’ll get to that” and then haven’t taken it out in a week you’d be rightly chided even though you never specified a timeframe.

        1. Yes, and in this case, chiding the executive is about all congress or the courts could do. They can’t force the executive to actually carry out executions.

    2. Doesn’t the Constitution grant the President the authority to grant Reprieves and Pardons? The president can reduce any Federal sentence he wants to, aside from Impeachments.

  7. dumping her body in a septic bond

    I think the important detail that’s been left out of this story is what kind of return do you get when dumping a body in a septic bond?

  8. Death penalty law is a disgusting travesty made awful by the same tactics anti-abortion crusaders have been using on the opposite side: Instead of outlawing it directly simply attack every conceivable method of performing it to indirectly strangle anyone’s ability to carry it out. The endless goalpost tweaking of “cruel and unusual punishment” hides and sanitizes what is going on: The state is killing someone. If state action is going to end someone’s (usually its own citizens’) life (the ultimate deprivation of rights) then it should be brutal so that no one forgets what is happening here. Why not just shoot them? It’s quick. It doesn’t create undue suffering. There’s no shortage of bullets and it doesn’t make serial killers and mass murderers go to sleep quietly and not wake up, but rather splatters the contents of their brains over the wall/floor and we can just leave it there so that no one forgets what it means to kill human beings.

    1. If state action is going to end someone’s (usually its own citizens’) life

      Pretty sure the United States has brutally ended far more foreigners’ lives than natives.

      1. Yeah, but that’s not an execution. That’s just warfare. I guess I could have clarified that I’m only talking about ending people’s lives as a result of a criminal trial that has found the person guilty.

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  10. Trump and his fans probably get bigger boners over executions than they do over kiddie porn, which is why he has scheduled so many and picked cases (Child killers) where the progs would have a hard time finding sympathy for them. It worked against Dukakis when GW Bush was behind by 15 points in 1988, only now there is much less support for the death penalty than there was then. But Trump still lives in the 80s.

  11. The death penalty is indeed cruel and unusual punishment.
    Civilizations before and now have never used the death penalty as a means of punishment. Our Founding Fathers must’ve gotten this idea of retribution from one of those nefarious writers, Adam Smith or Alexis de Tocqueville.
    Murders, especially mass murderers, are injured flowers that only require love, patience, a hug with a smile for them to reintegrate into society.
    Indeed, introducing these people into the wonders of flower arrangement, macrame and veganism will melt their murderous hearts into engines of love, tolerance and kindness.
    So let’s all go to the local penitentiary and do what’s right by them and society by showing our love, appreciation and kindness to people who will be more than happy to slit our throats and shit down our necks at the first given opportunity.

  12. The article lists six killers, all male. They were convicted of murdering thirteen people: three male and ten female. Six of the victims were adults, and seven were minors. Three of the adult victims were male, and three female. All of the minors were female.

  13. Why is there a “federal” death penalty? Most capital crimes are committed in one state or another, let them be prosecuted under the laws of the state where committed. Federal death penalty should be limited to capital offenses under UCMJ, capital crimes committed on US flag ships on the high seas, or in the Territories of the US.

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