First federal execution in 17 years can proceed, appeals court says

WASHINGTON â€”  A federal appeals court ruled Sunday that the first federal execution in nearly two decades can proceed as scheduled on Monday.

The ruling from the 7th U.S. Circuit Court of Appeals overturns a lower court order that had put the execution of 47-year-old Daniel Lewis Lee on hold.

Lee, of Yukon, Okla., had been scheduled to die by lethal injection on Monday 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.

Chief District Judge Jane Magnus-Stinson ruled Friday in Indiana that the execution would be put on hold because of concerns from the family of the victims about the coronavirus pandemic, which has killed more than 135,000 people and is ravaging prisons nationwide.

The Justice Department argued that the judge’s order misconstrued the law and asked the appeals court to immediately overturn the ruling.

The appeals court found that the claim from the victims’ family “lacks any arguable legal basis and is therefore frivolous.�

The Justice Department also argued that while the Bureau of Prisons has taken measures to accommodate the family and implemented additional safety protocols because of the pandemic, the family’s concerns “do not outweigh the public interest in finally carrying out the lawfully imposed sentence in this case.�

But in a court filing Sunday, Justice officials said a staff member involved in preparing for the execution had tested positive for the coronavirus.

The Justice Department said the development would not mean an additional delay in the government’s timetable because the worker 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 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. There are currently four confirmed coronavirus cases among inmates at the Terre Haute prison, according to federal statistics, and one inmate there has died.

The victims’ family had argued they weren’t trying to overturn Lee’s death sentence but instead they “seek to exercise their lawful rights to attend the execution of Lee, so that they can be together at that moment in time as they grieve their losses,� according to the filing.

The family will appeal to the Supreme Court.

“The federal government has put this family in the untenable position of choosing between their right to witness Danny Lee’s execution and their own health and safety,� said family attorney Baker Kurrus. “Because the government has scheduled the execution in the midst of a raging pandemic, these three women would have to put their lives at risk to travel cross-country at this time.�

The family hopes there won’t be an execution, ever. They have asked the Justice Department and President Trump not to move forward with the execution and have long asked that he be given a life sentence instead.

The relatives, including Earlene Branch Peterson, who lost her daughter and granddaughter in the killing, have argued that their grief is compounded by the push to execute Lee in the middle of a pandemic. Peterson, who is 81 and has not left the county where she lives since February, was told by her doctor she should not travel and should avoid contact with others as much as possible to during the pandemic, the filing said.

“Plaintiffs face the unacceptable choice between exercising their right to witness the execution and risking exposure to a deadly disease,� the lawyers wrote in an appeals court filing on Saturday.

Atty. Gen. William Barr told the Associated Press in recent days that 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.

The injunction that was imposed late Friday delays the execution until there is no longer such an emergency. The court order applies only to Lee’s execution and does not halt two other executions that are scheduled for later in the week.

The decision to resume executions 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.

The federal prisons system has struggled in recent months to stem the exploding coronavirus pandemic behind bars. As of Friday, more than 7,000 federal inmates had tested positive; the Bureau of Prisons said 5,137 of them had recovered. There have been nearly 100 inmate deaths since late March.