Killer Executed After Supreme Court Vacates Three Stays

AP reports:

Wesley Ira Purkey was put to death at the Federal Correctional Complex in Terre Haute, Indiana. Purkey had been convicted of kidnapping and killing a 16-year-old girl, Jennifer Long, before dismembering, burning and dumping her body in a septic pond. He also was convicted in a state court in Kansas after using a claw hammer to kill an 80-year-old woman who had polio.

The execution followed the extraordinary action of the Supreme Court vacating not one but three stays of execution. We have not seen anything like this since the Robert Harris execution in 1992, the furious battle over the resumption of executions in California. See also Bill’s post noting one of the orders last night.

You need a scorecard to keep track of the stays. So here we go.

On application 20A4, the Court vacated a stay entered by the Court of Appeals for the Seventh Circuit on Purkey’s appeal of denial of a habeas corpus petition by the U.S. District Court for Indiana. Use of habeas corpus to evade the strict limits that Congress put on successive post-conviction review motions under 28 U.S.C. § 2255 is not allowed. Motions under §2255 are filed in the original trial court, Missouri in this case, while habeas corpus petitions are filed in the district of imprisonment. Federal death row is in Indiana.

The Indiana District Court rejected Purkey’s attempt to use habeas to litigate once again in Indiana and the Seventh Circuit the effectiveness of his prior attorneys, an issue already litigated in Missouri and the Eighth Circuit. That decision was clearly correct in my opinion, DOJ’s, and, we know now, the Supreme Court’s. Yet the Seventh Circuit granted a stay to litigate the matter. The government’s application to vacate the stay is here. The order granting it, dated yesterday, is here. Justices Ginsburg, Breyer, Sotomayor, and Kagan noted their dissent but did not write opinions.

Application 20A9 sought vacation of a preliminary injunction against the execution of Purkey’s sentence issued by the District Court for the District of Columbia based on Purkey’s claim that he was not mentally competent to be executed. This is called a Ford claim after Ford v. Wainwright, 477 U.S. 399 (1986). The reason for filing this suit in the District of Columbia for a Missouri case being executed in Indiana is, well, let me charitably say unclear.

This is the application that produced written dissents from Justices Breyer and Sotomayor.

Application 20A10 is the FDCA injunction I noted yesterday. On the eve of execution, the D.C. District Court decided that execution by lethal injection is illegal unless a doctor prescribes the drug (which, obviously, no doctor is going to do) even though states and the federal government have been executing murderers this way for three decades without Rx. The order vacating this injunction is here. No dissent is noted on this one.

The Supreme Court needs to issue some clear guidance to lower courts on handling these matters. The multiplicity of suits and venues is a particular problem.

One possible reform is to require that any suit to enjoin the execution of a judgment of a court be filed in the court that issued the judgment, see, e.g., Cal. Penal Code § 3604.1, at least in the absence of a very compelling reason to file it elsewhere. Judge-shopping is not a compelling reason.

Update: Amy Howe has this post on these orders and a couple of related ones on her blog.