Reprinted with permission from ProPublica
In its hurry to use its final days in power to execute federal prisoners, the administration of President Donald Trump has trampled over an array of barriers, both legal and practical, according to court records that have not been previously reported.
Officials gave public explanations for their choice of which prisoners should die that misstated key facts from the cases. They moved ahead with executions in the middle of the night. They left one prisoner strapped to the gurney while lawyers worked to remove a court order. They executed a second prisoner while an appeal was still pending, leaving the court to then dismiss the appeal as “moot" because the man was already dead. They bought drugs from a secret pharmacy that failed a quality test. They hired private executioners and paid them in cash.
The unprecedented string of executions is often attributed to Attorney General William P. Barr, and his role was instrumental: It was Barr's signature that authorized the use of a new lethal injection drug, his quotes that trumpeted the execution announcements and his position as attorney general that holds the ultimate authority in capital cases. (Barr is resigning effective Wednesday.)
But a ProPublica review of internal government records shows that Barr did not act alone. The push to resume federal executions for the first time since 2003 long predates Barr, with groundwork beginning as far back as 2011 and accelerating after Trump took office in 2017. It could not have happened without the help of Justice Department lawyers; officials at the Bureau of Prisons; two professors who endorsed the government's injection method; conservative Supreme Court justices who dismissed final appeals; and Trump himself, who encouraged the executions and declined to commute them.
Trump and his surrogates don't shy away from this. Throughout the campaign they highlighted the executions as a contrast to Joe Biden's opposition to the death penalty, reinforcing Trump's “law and order" message. White House Press Secretary Kayleigh McEnany even invoked the execution of Daniel Lee, who fell in with skinhead groups as a teenager and renounced those beliefs decades ago, to defend Trump after he declined to disavow white supremacists in the first debate.
“The activation of the death penalty and appearance of being tough on crime played into the administration's political strategy — the same political strategy that pushed for separating children and parents and using force against peaceful demonstrators," said Robert Dunham, executive director of the Death Penalty Information Center, a nonprofit that tracks executions. “An administration which is concerned about the rule of law and which respects the Constitution would have allowed court challenges to proceed and would not have attempted to carry out executions under a procedure that could be declared unlawful."
The Justice Department has killed ten people since July, with three more executions scheduled before Biden's inauguration. Most every federal agency is rushing to wrap up unfinished business, cementing policy objectives in ways that will make them harder for the incoming president to unwind. But the Justice Department's pressing forward with executions, even after the election of a new president who opposes them, is uniquely irreversible.
The White House and BOP declined to comment. In a statement, the Justice Department said: “Seeking the death penalty and carrying out capital sentences is not a political issue, nor have political considerations influenced the department's decisions. The death penalty is a law enforcement and public safety issue, and the department is obligated to carry forward these sentences regardless of who is the president or the attorney general."
“Death Penalty All The Way"
A slim and shrinking majority of Americans support capital punishment, according to public polling. But it remains popular with Republicans, especially white evangelicals. That coincides with the strongest base of support for Trump, who, in 1989, famously bought full-page ads in New York newspapers demanding the death penalty for five young Black and Latino men who were wrongly accused of attacking a white female jogger in Central Park.
“Death penalty all the way," Trump said at a February 2016 campaign event in New Hampshire. “I've always supported the death penalty. I don't even understand people that don't."
Until this year, the Justice Department hadn't executed anyone since 2003. This long interruption was as much practical as legal. A drug that most states and the federal government used in lethal injections, a sedative called sodium pentothal, became unavailable because the sole American manufacturer stopped making it. The drug shortage thwarted the Obama administration's plan to execute convicted murderer Jeffery Paul. States began using a similar drug called pentobarbital, and in 2011 federal prison officials observed several state executions, according to court records.
Shortly after Trump's presidency began, his first attorney general, Jeff Sessions, wanted to resolve these issues so that BOP could resume executions. Associate Deputy Attorney General Brad Weinsheimer said in a January 2020 deposition that Sessions began “conversations with staff and BOP to move forward on that."
One of the staffers involved was Matthew Whitaker, according to Weinsheimer. Whitaker, who briefly led the Justice Department between Sessions and Barr, didn't respond to requests for comment.
BOP made plans to use pentobarbital. But it had also become scarce as manufacturers shunned its use in executions. States resorted to using “compounding pharmacies," which mix ingredients for custom-made drugs.
BOP planned to import powdered pentobarbital from a “ foreign FDA-registered facility" but later turned to a domestic bulk manufacturer. It also hired a compounding pharmacy to create an injectable solution. The government has guarded vendor identities, since public scrutiny could pressure them to back out.
A sample of the compounding pharmacy's solution failed a quality test by an outside lab. But according to Weinsheimer, BOP said the problem was the lab, not the compound itself, and sent a new batch to a different lab.
BOP also explored using a different drug: the opioid fentanyl. In a March 2018 memo, then-BOP Director Mark S. Inch said BOP found a fentanyl supplier but warned “there may be negative publicity associated with using a drug to which so many Americans are addicted."
For unclear reasons, BOP planned to have the executions carried out by two private contractors, rather than government employees. The government won't disclose the contractors' names or profession, and it pays them in cash. “If we didn't pay them in cash," a BOP lawyer said in a deposition, “they probably wouldn't participate."
“Killing Is Not A Treatment"
BOP officials knew their new drug choice would face resistance in court; lawyers have argued that pentobarbital would flood prisoners' lungs with froth and foam, inflicting pain and terror akin to a death by drowning. BOP worked to fend off those concerns with expert witnesses who would say the drug was humane.
Finding these experts was challenging because most doctors consider it unethical to have anything to do with executions. The American Medical Association and other professional groups prohibit any participation, including the “rendering of technical advice."
“Doctors are experts in unkilling, we are not experts in killing," said Dr. Joel Zivot, an anesthesiologist at Emory University who has testified that lethal injection of pentobarbital simulates death by drowning. “This is why lethal injection is so problematic. It impersonates a medical act, but it's not about medicine at all. Killing is not a treatment. An execution chamber is not an operating room."
The Justice Department would later claim that “BOP consulted with medical professionals" (plural). That is not exactly true. BOP engaged two expert witnesses. The first, Craig W. Lindsley, is a professor of chemistry and pharmacology at Vanderbilt University. He is not a physician or licensed care provider; he has a Ph.D., not an M.D. In May 2017, Lindsley wrote a two-page report for BOP stating that pentobarbital will take effect so rapidly the prisoner wouldn't feel a thing. He concluded, “Of all the available options and protocols in use today, I believe this protocol to be the most humane."
Lindsley declined to be interviewed, citing Justice Department instructions. He did not disclose his compensation, but he was hired through a contract with a consulting firm called Elite Medical Experts that the Justice Department paid $22,000 in the same month as Lindsley's report. The company's CEO, Dr. Burton Bentley II, did not respond to requests for comment.
BOP's second expert witness was a medical doctor: retired California anesthesiologist Joseph F. Antognini. Antognini has said he personally opposes the death penalty as a Catholic. But he also said he believes states have a right to his advice, comparing it to criminal defendants' right to a lawyer.
Antognini has not addressed how he squares his testimony supporting executions with his Hippocratic oath. He did raise ethical considerations when he was asked to compare lethal injection to poison gas (a comparison between methods, like the one Lindsley made). “Recommending one method of execution over another, I guess that's an ethical issue for me," he said in a deposition.
Antognini's rare position as a doctor vouching for lethal injection has made him a valuable witness in capital cases, including a Missouri case that later reached the Supreme Court. Antognini charges $400 an hour, $2,000 for a deposition, $4,000 per day in court and $2,000 per travel day.
In a deposition in the Missouri case, which involved the same lethal injection drug, Antognini testified that pentobarbital would make the prisoner unconscious within 30 seconds and people can't suffer while they're unconscious. “Can you explain to me how you would have suffering in somebody who is unconscious?" Antognini said. “I don't see how that can happen based on my understanding of how all this works."
Yet just a few minutes earlier Antognini had acknowledged, “We don't know how anesthetics work." Scientists understand how the drugs act in the brain on a cellular level, he explained, but not how they produce unconsciousness.
The Supreme Court accepted Antognini's pentobarbital testimony. Other courts have been skeptical, ascribing his views “ little or no weight."
Reached by phone, Antognini said he was busy and agreed to talk at a later time. When that time came, Antognini declined to comment. “I wish you all a very merry Christmas," he said, and hung up.
“Some Objective Factor"
By the summer of 2019, BOP determined that its drug supply was secure and it was ready to schedule executions. The agency gave Barr a list of 14 prisoners, out of about 60 on death row, who had exhausted their appeals. The Justice Department has refused to disclose this list. (Court records include a list from 2017 with 10 names, but they must not overlap entirely because two of the prisoners who Barr chose in 2019 were not on the earlier list.)
Barr decided whom to execute with the help of the then-deputy attorney general, Jeffrey Rosen (set to become the acting attorney general), and aides including Paul Perkins and Timothy Shea (who later became acting U.S. attorney in Washington and now leads the Drug Enforcement Administration). The officials mulled executing all 14 but decided to start with five.
They chose the five, according to Weinsheimer's deposition, for the same reason that Barr would publicly announce on July 25, 2019: They were “convicted of murdering, and in some cases torturing and raping, the most vulnerable in our society — children and the elderly."
“There was an effort to find some objective factor in looking at the 14," Weinsheimer said. “This was an aggravating factor that seemed to apply."
In fact, that wasn't true. Barr's summary of the case of Daniel Lee incorrectly said he “murdered a family of three, including an 8-year-old girl." The undisputed evidence was that Lee refused to kill the girl, so his co-defendant did. The co-defendant was sentenced to life in prison, while Lee was sentenced to death.
Weinsheimer said he didn't know if there were other death row inmates who murdered children or the elderly. There were, according to a review by ProPublica.
Barr's announcement also justified the executions on the basis that “we owe it to the victims and their families." This also was not true in Lee's case: Family members of Lee's victims have publicly come out against executing him (as have the prosecutor and judge). The families of the four other prisoners' victims supported the executions. In any event, the Justice Department didn't consult victims' family members when deciding who to kill, Weinsheimer said in his deposition.
The Justice Department also didn't review the prisoners' physical or mental health as part of its selection, according to Weinsheimer. One of the five, Alfred Bourgeois, had an IQ between 70 and 75, and his lawyers argued he is intellectually disabled. Another, Wesley Purkey, suffered from schizophrenia, dementia and Alzheimer's disease, which his lawyers said made him unable to understand the reason for his execution.
Weinsheimer said the Justice Department decided to schedule the executions in the order that the prisoners were convicted, with the oldest first. However, they were not the oldest capital convictions, according to ProPublica's review.
As for the executions' timing, Barr's announcement did not explain why, after a 17-year hiatus, the first three executions were scheduled within one week of each other. BOP officials voiced concern that these back-to-back executions would put more stress on their staff, the agency's lawyer said in a deposition. (After a 2014 lethal injection in Oklahoma went gruesomely awry, the state's investigation concluded that one contributing factor was having two executions scheduled that day.) Nevertheless, BOP's lawyer said the agency booked three executions in one week because of “guidance from the attorney general." Weinsheimer denied that Barr gave a “direction" on how to schedule the executions.
Even prisoners who have exhausted their post-conviction appeals can go back to court to try to stop their execution once a date is set. A federal judge in Washington put the executions on hold in November 2019. The appeals court disagreed in April. Barr swiftly rescheduled the executions for Lee, Purkey and Dustin Honken, in a span of four days in July. In this announcement, Barr cut two from the original five (Bourgeois and Lezmond Mitchell), and added a new prisoner, Keith Nelson. The unifying theme, he said, was “murdering children," repeating his inaccurate summary of Lee's crime.
On the day Lee was supposed to be executed, the judge in Washington ordered a new injunction. The appeals court declined to intervene, so the Justice Department went to the Supreme Court.
The Supreme Court's conservative majority has been consistently hostile to last-ditch reprieves in capital cases. “Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay," Justice Neil Gorsuch wrote in a 2019 case (the Missouri execution that featured Antognini's testimony).
The conservatives have been equally unsympathetic to objections to lethal injection, considering that the court never found a constitutional problem with “traditionally accepted methods" such as hanging, electrocution and firing squad. “The Eighth Amendment does not guarantee a prisoner a painless death," Gorsuch wrote in the Missouri case, “something that, of course, isn't guaranteed to many people, including most victims of capital crimes."
Early on July 14, five justices ruled that Lee's execution could go ahead, saying that he had “not made the showing required to justify last-minute intervention." Technically, Lee's death warrant had expired at midnight, but the government issued a new same-day notice and went ahead with the execution around 4 a.m. Lee's lawyers protested that there was still a separate court order that the Supreme Court hadn't addressed, so officers left Lee on the gurney while government lawyers worked to wipe out that last obstacle. “That cautious step, taken to ensure undoubted compliance with court orders, is irreconcilable with the suggestion that the department 'rushed' the execution or disregarded any law," Rosen, the deputy attorney general, wrote in a July op-ed. Less than an hour after a federal appeals court granted the government's request, Lee was dead.
“Today, Lee finally faced the justice he deserved," Barr said in a statement.
Later that day, at a White House press conference, Trump referred to Lee's execution as part of his attack on the Democratic Party platform. “Abolish completely the death penalty," he said. “You know what happened today with regard to the death penalty."
Trump's campaign was more explicit in an email blast the next day. “President Trump ensured total justice for the victims of an evil killer," the campaign told supporters. “With the Trump administration slated to administer total justice to three more child murderers and rapists in the coming weeks, Biden should explain why they should be protected from paying the ultimate price for their evil, horrific crimes."
That same day, July 15, Purkey was scheduled to die. Again after 2 a.m., a sharply divided Supreme Court lifted the outstanding court orders. Purkey's lawyers rushed to federal district court for a new emergency stay on the basis that his Alzheimer's and schizophrenia left Purkey unable to understand his sentence. But the Justice Department made clear that it would not wait to let that petition play out.
In a “courtesy notice" emailed to one of Purkey's lawyers at 2:03 a.m. on July 16, a senior Justice Department official said the execution would go forward at 4 a.m., despite the new court filing. “Your colleague asked me whether the govt would delay the execution to allow the judge … to consider the stay application," Hashim Mooppan, counselor to the solicitor general, said in the email. “In light of the Supreme Court's orders today and on Tuesday morning, the government will not delay the execution further. Absent a court order barring the execution, the govt intends to proceed."
The judge, in fact, did say the execution should halt while he considered the motion, but he swiftly denied it, and chastised Purkey's lawyers for “procedural gamesmanship."
“Despite the risk of irreparable harm to Mr. Purkey, the balance of equities do not weigh in his favor," wrote the judge, James R. Sweeney II, who was appointed by Trump in 2017. Sweeney's brief order did not specify what equities he weighed, but the government had argued that Purkey's sentence had already been upheld multiple times.
As Purkey's lawyers rushed to appeal, BOP went ahead with placing an IV in Purkey's arm. He was dead before the appeals court made its ruling. The court later dismissed Purkey's appeal as “ moot" because he was already dead.
Honken died the next day, the third that week.
“A Personal Interest"
As prisoners desperately fought the government's execution plans in court, they argued that overdosing on pentobarbital would be so excruciating that even death by firing squad would be less painful. Justice Department lawyers chafed at the suggestion. In response, they said firing squads were “more primitive" than lethal injection, and reintroducing them would be a “regressive change."
Two weeks later, however, the agency took steps to do just that. The Justice Department proposed a regulatory change to authorize execution methods besides lethal injection, including firing squads, which remain legal in three states. “This proposed rule would provide the federal government with greater flexibility to conduct executions in any manner allowed by federal law," the agency said. “The proposed rule would therefore forestall potential future arguments by prisoners in litigation."
The proposal made other tweaks to the department's regulations to address issues raised in litigation — not exactly admitting error, but tacitly acknowledging cracks in the government's legal foundation.
While the proposal was formally signed by Barr, its point person was Laurence E. Rothenberg, a deputy assistant attorney general in the Office of Legal Policy. Though he is a career employee, Rothenberg's LinkedIn profile picture shows him standing proudly with Barr, and he has staked out a public position supporting the death penalty.
In a 2004 law journal article ( also published by the conservative Federalist Society), Rothenberg described the death penalty as “intrinsically just." He also defended executing juvenile offenders against claims that doing so violates international law.
In another article, from 2006, Rothenberg and a Justice Department colleague attacked common critiques of the death penalty. “The extent of racial disparities in capital cases in the United States has been vastly exaggerated," they wrote.
Rothenberg has said that his criminal justice views are shaped by a family tragedy. “I also have a personal interest in, and commitment to, this work, as the son of a murder victim," he said in 2009 congressional testimony about a victims rights law. In 1974, Rothenberg's parents were shot, his father fatally, on a trip to the Virgin Islands. The shooter was convicted of murder and sentenced to life in prison.
The regulation became final the day after Thanksgiving.
“It Didn't Go Well"
For the next round of executions, Barr's announcement simply said that the two prisoners, William LeCroy and Christopher Vialva, were “convicted of murder." He gave no other reason or explanation for their selection.
Earlier this month, the Justice Department executed Vialva's co-defendant, Brandon Bernard. Bernard was 18 at the time and did not pull the trigger. The prosecutor and five of the nine all-white jurors who convicted Bernard, who is Black, have since said his life should be spared. The reality star Kim Kardashian tried unsuccessfully to convince Trump to commute his sentence.
At the federal death row facility in Terre Haute, Indiana, the inmates are allowed to leave each other bequests, according to The New York Times. Alfred Bourgeois received his friend Bernard's wrist watch for the single day before it was his turn to die.
Bourgeois was strapped to a gurney in the middle of a green-tiled room, an IV in his arm. As the pentobarbital flowed, Bourgeois' stomach heaved and popped, according to George Hale, a public radio reporter who witnessed the execution. The apparent gasping for breath was consistent with how lawyers have described the drowning sensation that the injection could cause.
Bourgeois' death took 28 minutes, almost twice as long as Bernard's. Hale said, “If Alfred Bourgeois was suffering that night, he suffered for a long time."
There are three more federal executions scheduled in January — eight, six and five days before Biden's inauguration.