A correction officer patrols outside the Federal Correctional Institution, as Daniel Lewis Lee is set to be put to death in the first federal execution in 17 years, in Terre Haute, Ind., July 13, 2020. (Bryan Woolston/Reuters)
I have a column on the homepage about the Justice Department’s attempt to carry out the death penalty sentence of Daniel Lewis Lee, an atrocious triple-murderer whose execution was scheduled to take place Monday afternoon at the federal penitentiary in Terre Haute, Ind. As I said in the column, (a) the execution would go forward absent any further court interventions, and (b) there are often court interventions because there is searing hostility to capital punishment among judges, particularly “living Constitution” progressives who do not accept the death penalty’s validity despite its being approvingly mentioned in the actual Constitution.
Well, sure enough, as our Zachary Evans reports, yet another judge appointed by President Obama has ridden to Lee’s eleventh-hour rescue. District Judge Tanya S. Chutkan of the federal district court in Washington D.C., issued a 22-page ruling this morning which imposes an injunction against Lee’s execution, and that of three other prisoners who are scheduled to be executed in the coming weeks.
How, you may wonder (as I certainly did) does a lower court judge in Washington have the power to stop an execution in Indiana arising out of a triple-murder in Arkansas, when a higher court with jurisdiction over the defendant in Indiana (i.e., the Seventh Circuit U.S. Court of Appeals) just ruled on Sunday that the execution could proceed?
The answer is that there is a separate case brought by four death-row inmates, including Lee, that challenges the “2019 Protocol” announced by the Justice Department in Washington last year. The 2019 Protocol sets out revised procedures for carrying out executions. Ever since, it has been the subject of tireless legal challenges.
The one on which Judge Chutkan is now focused involves the Justice Department’s plan to use pentobarbital to sedate the convict in the first two injections of a three-injection procedure. Lee and the other death-row inmates contend that phenobarbital could cause too much pain, in violation of the Eighth Amendment proscription against cruel and unusual punishment. Their experts testify that it may lead to “flash pulmonary edema,” which can produce “sensations of drowning and asphyxiation,” resulting in “extreme pain, terror, and panic.”
If you think this is something of an odd claim to be making about a procedure, the very purpose of which is to cause death — the anticipation of which, naturally, could lead to terror and panic — you are right. That is especially so in light of the facts that, (a) there is no legal requirement (if there is even a practical possibility) the government inflict no pain whatsoever in executing a death sentence, and (b) lethal injection has been adopted precisely to carry out execution humanely.
But this is where we are at. The court says the Justice Department’s experts maintain that flash pulmonary edema “occurs either post-mortem or after the inmate has been rendered insensate.” This induces Judge Chutkan write the following brain-twister in her ruling (my italics): “Thus, the question of whether the 2019 Protocol is significantly likely to cause serious pain turns on the narrower question of whether the phenobarbital is likely to render inmates insensate or dead before they experience the symptoms of pulmonary edema.”
It is left to the higher courts, I suppose, to tease out what experiences we can expect to have after death. For a federal judiciary that aspires to sort out for us mere mortals the “concept of existence, of meaning, of the universe, and of the mystery of human life,” it’s all in a day’s work.
Meanwhile, Judge Chutkan suggests that the firing squad might be better . . . at least until such time as the Justice Department were to try employing the firing squad.