Stafford: Executions indict the justice system at just the wrong time

“Ain’t no use jiving

Ain’t no use joking

Everything is broken”

— Bob Dylan

The United States last week resumed executions after 17 years. The first one was a travesty.

Daniel Lewis Lee was no choirboy. He participated in a heinous 1996 Arkansas triple murder. But he insisted to his grim end at the federal prison in Terre Haute — and his victims’ family members agreed — that Lee was less culpable than the man who was the ringleader of a white supremacist group who had recruited him. The ringleader lives on, serving a sentence of life in prison in connection with the murder.

Lee’s last words were, “You’re killing an innocent man.”

This was around 8 a.m. on July 14, after his execution had been green-lighted under cover of darkness by a 5-4 U.S. Supreme Court ruling. What preceded and what followed, regardless of your views on capital punishment, argues for reinstating the moratorium on federal executions.

“(A) mere 31 minutes after a court of appeals lifted the last impediment to his execution at the federal government’s urging, while multiple motions remained pending, and without notice to counsel, he was executed,” Lee’s attorney, Ruth Friedman, who also directs the Federal Capital Habeas Project, said in a statement after a lethal dose of pentobarbital was injected into Lee’s body.

Lee’s execution was political. Attorney General William Barr argued among other motivations that executing Lee would give the victims’ family closure. But they had opposed the execution and petitioned the court for mercy, begging that Lee not be executed in their names. They also wanted to attend the execution, but not at the risk of traveling hundreds of miles during a pandemic.

Here is what 81-year-old Earlene Peterson, mother and grandmother of two of the victims, and other relatives had to say through their attorney after Southern District of Indiana Chief Judge Jane Magnus-Stinson temporarily granted the relief they sought, blocking Lee’s execution on July 10:

“Earlene Branch Peterson, Kimma Gurel, and Monica Veillette are grateful to the court for this ruling, which will enable them to exercise their right to attend the execution in the future while protecting themselves against the ravages of COVID-19. The family is hopeful that the federal government will support them by not appealing today’s ruling(.) … We hope the government finally acts in a way to ease, rather than increase, the burdens of Mrs. Peterson and her family who have already been through an unspeakable tragedy.”

Magnus-Stinson, a Democratic-appointed judge, had cited an Arkansas law that entitles victims to witness executions. However, 7th Circuit Court of Appeals Chief Judge Diane Sykes and judges Amy Comey Barrett and Frank Easterbrook, all Republican appointees, reversed in brutal terms. They held not only that families of victims have no standing, but also that Magnus-Stinson had been wrong to bring up the law in a court case.

Obscene and unjust as that was, those judges went further, holding these victims’ family members’ pleadings were frivolous. At a time when the American criminal justice system is under the most intense scrutiny of most of our lives, this was slap in the face to these victims’ family members and a bizarre, out-of-touch, wholly mean-spirited form of justice.

Even before the global upheaval triggered by the police killing of George Floyd, even before this infernal pandemic, public sentiment against the death penalty had surged. A Gallup poll from last November found 60% of Americans favored life without parole as the sentence for murder, compared to 36% who favored the death penalty. That’s a big margin, and it’s a big turn: It was the first time in the 35 years the question has been tracked that a majority preferred the sentence of life in prison.

But why should the desires of crime victims’ families, actual laws on the books, public sentiment, the spirit of the times or due process matter? Friedman said it better than I can: “it is beyond shameful that the government, in the end, carried out this execution in haste, in the middle of the night, while the country was sleeping. We hope that upon awakening, the country will be as outraged as we are.”•

• Dave Stafford — [email protected] — is editor of Indiana Lawyer. Opinions expressed are those of the author.