Earlier this week, the Supreme Court refused to consider a challenge to Attorney General William Barr’s effort to jump-start federal executions for the first time in nearly two decades, turning down a case questioning the legality of the government’s lethal injection protocol.
That decision doesn’t entirely clear the way for federal executions to resume. On Thursday, the Capital Punishment Project at the American Civil Liberties Union demonstrated that the challenges to the new death penalty push will continue. The organization has sued Barr in federal court to stop one of four upcoming scheduled executions on the basis of a religious liberty claim and the impacts of COVID-19.
The suit is filed on behalf of Dale Hartkemeyer, who goes by the religious name Seigen and is a Buddhist spiritual adviser to one of the men set for execution, Wesley Ira Purkey. Seigen has been the spiritual adviser of Purkey, who raped and murdered 16-year-old Jennifer Long in 1998, for the past 11 years. Purkey’s execution date, July 15, is the second of four scheduled federal executions in the next two months. The federal government has not executed anyone since 2003.
Seigen is 68 years old and suffers from several lung-related illnesses that make him particularly vulnerable to COVID-19, he said in a sworn declaration. He also feels spiritually obligated to be by Purkey’s side if and when Purkey is executed by the state.
The lawsuit argues that Seigen’s rights are being compromised by Barr’s rush to restart executions that will require hundreds to gather around prison communities that are epicenters of the COVID-19 pandemic. What’s more, federal executions had been on pause for 17 years and there appears to be no new urgency to the matter.
“In order to help provide for a peaceful state of mind and a proper transition and liberation, it is my sacred religious duty to be at Mr. Purkey’s execution,” Seigen wrote. “My failure to be there would, for me, constitute a troubling violation of my religious tenets and priestly obligations. Given my relationship with Mr. Purkey, which has developed over the course of eleven years, it is inconceivable that I should be absent and fail to share in his final tribulation.”
Seigen’s argument ties into the Supreme Court’s ongoing battles over religious rights in the execution chamber. Last year, the court’s conservative majority allowed a Muslim death row inmate in Alabama to be executed without his imam present, citing a technical reason. After that, though, the Supreme Court ordered prisons to allow religious advisers of all faiths to be present at executions if Christian chaplains are allowed. In response to that order, Texas rescinded its policy allowing chaplains to be present for executions entirely. But in June, the Supreme Court stayed an execution of a Texas inmate, Ruben Gutierrez, who requested a religious adviser be present during his execution. The court’s current stance is essentially that, for now, executions can’t go forward in cases where an inmate has made a timely request under a state’s existing regulations for a spiritual adviser and has been denied one.
This would seem to bode well for Seigen and Purkey. While the religious rights in question in past cases applied to those of death row inmates, the ACLU argues that Seigen is similarly situated as a spiritual adviser who would have his rights denied due to the state’s insistence on holding an execution in the midst of a deadly pandemic.
“The takeaway from what we saw in the Gutierrez case most recently is that the Supreme Court is very concerned when there is a burden on the exercise of religion connected with executions and that is an issue that is broadly implicated in this suit,” Cassandra Stubbs, the director of the Capital Punishment Project, told me.
Stubbs notes that Seigen was “fully willing to take on” his religious obligation to attend the execution when it was initially scheduled in December but now feels that attending the execution at the United States Penitentiary in Terre Haute, Indiana, could threaten his health and life. As of Thursday, according to the Bureau of Prisons, 1,634 federal prisoners and 170 BOP staff had tested positive for COVID-19 and 91 prisoners and one staff member had died. In the Terre Haute facility, six inmates have tested positive and one has died, according to the government.
“Prisons are incredibly dangerous place for COVID-19. We know that Terre Haute has an outbreak right now and that’s before this sprawling plan to bring hundreds of people from across the country to congregate,” Stubbs said. The ACLU is concerned the executions will “become a superspreader event,” she said.
Should Seigen’s religious claim fail, he—and potentially other litigants challenging this set of executions—have strong grounds to challenge the execution date as arbitrary and capricious agency action under the Administrative Procedure Act, which governs how federal agencies are allowed to carry out federal law. Federal regulations allow prisoners to have access to spiritual advisers of their choosing and that regulation would have to be circumscribed to allow this execution to go forward, it appears.
“The BOP regulations are crystal clear that Mr. Purkey has a right to have his spiritual adviser present. He has a right to designate [who that person is], that’s always been the federal regulation,” Stubbs said.
The lawsuit argues that scheduling the execution at a time that would deprive Seigen of his place as Purkey’s chosen spiritual adviser would be in direct conflict with the bureau’s own regulations as arbitrary and capricious under the APA’s guidelines, particularly given the 17-year delay of federal executions. At least one state prisoner in Missouri has been executed since the pandemic started, but even state executions have mostly been frozen at a time when the federal government is inexplicably restarting its own executions.
Stubbs also argues that executing Purkey now would not just risk those directly gathering for the execution but also their communities. Many communities surrounding prisons have suffered severe outbreaks.
“If you’re trying to think of a bad idea from a COVID perspective, trying to put together one of the riskiest experiences you can, you have all the ingredients here,” she said. “There are going to be media tents there, there’s going to be protesters and buses and elaborate security. It’s really fairly astonishing that BOP can move forward with this plan at a time when President Trump is canceling rallies in Alabama for COVID [reasons].”
As Supreme Court Justice Stephen Breyer has long argued in dissent, the death penalty in this country suffers from “arbitrary application and serious unreliability.” With a pandemic raging across the country, we’ll know in the next two weeks if it’s about to become even more arbitrary.