[Note: This article is an update to our series on the 2020-2021 federal execution spree.]
In the waning days of his term, Donald Trump and his administration carried out three final federal executions. The executions of Lisa Montgomery, Corey Johnson, and Dustin Higgs brought the total number of executions carried out by the Federal Government in the past year to thirteen, a rate and number of executions unprecedented in modern times. Continuing the trend seen in the prior ten federal executions, the announcement of the final three execution dates spurred individual litigation that spanned jurisdictions.
Lisa Montgomery: Executed January 13, 2021
Lisa Montgomery was the only woman on federal death row and the first woman executed by the Federal Government since 1953. She was the victim of severe physical, sexual, and mental abuse throughout her life, circumstances which formed the basis of many of her recent appeals and clemency petition. Her case garnered international attention after a panel of independent UN human rights experts called for clemency. The UN group raised concerns because her trauma and mental health issues were never adequately litigated and considered by the courts.
On October 16, 2020, the DOJ set Ms. Montgomery’s execution for December 8, 2020. The D.C. District Court issued a “brief stay” on November 19, 2021, after Ms. Montgomery’s attorneys contracted COVID-19. Their diagnoses were linked to a visit to Ms. Montgomery at Federal Medical Center, Carswell in Fort Worth, Texas. The stay sought to give her attorneys time to recover and file a petition for clemency and prohibited the DOJ from executing Ms. Montgomery before December 31, 2020. On November 23, 2020, the Bureau of Prisons reset the execution date to January 12, 2021.
Ms. Montgomery filed an additional motion requesting that the D.C. District Court issue a clarification that the Federal Government could not set a new execution date while there was a stay in place. Ms. Montgomery also argued that because the Federal Death Penalty Act (FDPA) requires the Federal Government in carrying out an execution to apply “the law of the State in which the sentence [was] imposed,” the setting of her execution date must comply with Missouri law, which requires an individual to be given 90 days’ notice before an execution can occur. The law also precludes the State from issuing more than one execution warrant per month in a case. In an order issued on December 24, 2021, the D.C. District Court agreed that the DOJ could not set a new execution date while there was an active stay in place but declined to rule on Ms. Montgomery’s remaining claims, finding that they were hypothetical until a new date was legally set. The U.S. Court of Appeals for the D.C. Circuit granted the Government’s motion to vacate the stay on January 1, 2021, reinstating the January 12, 2021 execution date. Ms. Montgomery appealed the D.C. Circuit’s order to the Supreme Court, which refused to grant a stay of execution or grant a writ of certiorari to resolve Ms. Montgomery’s claim regarding the conflict with Missouri state law.
In a second case filed in the District of Columbia, Ms. Montgomery again raised her claim that her execution date violated provisions of the FDPA that require sentences to be imposed and implemented in the manner prescribed by the law of the state where a sentence was imposed. The U.S. Court of Appeals for the D.C. Circuit granted the stay late on the night of January 11, 2021, finding that Ms. Montgomery’s claim raised a critical question about an unsettled meaning of the FDPA. The Government then filed an application for stay or vacatur of the D.C. Circuit’s stay of execution with the Supreme Court. In a brief, unsigned opinion, the Supreme Court granted the vacatur of the stay and reinstated Ms. Montgomery’s execution date.
In a separate case, Ms. Montgomery filed a petition in the United States District Court for the District of Missouri, arguing that the judgment that imposed her death sentence contained a stay provision that was never lifted. The district court denied her motion, finding that the stay was lifted when her original petition for habeas corpus was denied, as the original stay was not an indefinite stay of execution. The Court of Appeals for the Eighth Circuit disagreed and granted a stay. Again, the Government appealed to the Supreme Court, which lifted the stay in a short order just before midnight on January 13, 2021.
Finally, a fourth stay of execution was issued to Ms. Montgomery by the United States District Court in Indiana to allow her to present evidence that her deteriorating mental condition made her ineligible to be executed under Ford v. Wainwright. The district court granted her a stay on January 12, 2021. However, the Court of Appeals for the Seventh Circuit reversed, and the Supreme Court denied her application for a stay. Justices Breyer, Sotomayor, and Kagan indicated that they would have granted the application to allow for a hearing on Ms. Montgomery’s mental state.
Corey Johnson: Executed January 14, 2021
Similar to many others who have faced the death penalty in the United States, Corey Johnson never had an opportunity for a court to review his ineligibility for the death penalty based on intellectual disability. On November 20, 2020, the DOJ set Mr. Johnson’s execution for January 14, 2021. Shortly after, attorneys for Mr. Johnson filed a petition in federal district court in Richmond, Virginia, seeking review of evidence that Mr. Johnson was intellectually disabled. The court denied the petition without prejudice, stating that it was a successive habeas petition, generally prohibited by the Antiterrorism and Effective Death Penalty Act (ADEPA). As such, it required permission from the federal appellate court to proceed before the district court could review it. Mr. Johnson sought authorization to file a second habeas petition.
Separately, Mr. Johnson appealed the decision to the Fourth Circuit Court of Appeals, asking for a stay of execution. On January 12, 2021, the Fourth Circuit denied Mr. Johnson’s motion for stay of execution as well as his related request to file a successive habeas petition regarding his claim of intellectual disability. The Fourth Circuit expressed concerns over delaying Mr. Johnson’s execution based on the number of appeals and petitions that various courts have heard since his conviction in 1993 and citing the need for finality on behalf of the Government and the victims. In the same opinion, the Fourth Circuit also rejected Mr. Johnson’s intellectual disability claim based on the presentation of a psychologist at the trial who determined that Mr. Johnson was not intellectually disabled under the diagnostic standards of the time. However, since then, new information regarding Mr. Johnson’s intellectual disability has come to light, and the diagnostic criteria have changed. Mr. Johnson’s attorney’s presented affidavits detailing his difficulties in school and updated records, including a test administered when he was 45 that showed he was still functioning “at an elementary school level.” After the Fourth Circuit denied his appeal, Mr. Johnson sought en banc review. By an 8-7 vote, the Fourth Circuit declined to reconsider the three-judge panel’s refusal to grant an evidentiary hearing to determine whether Mr. Johnson was constitutionally barred from execution due to his intellectual disability.
In another petition, both Mr. Johnson and Dustin Higgs argued to the U.S. District Court for the District of Columbia that because they contracted COVID-19 in December 2020, an execution via lethal injection would subject them to unconstitutional levels of suffering, violating the Eighth Amendment ban on cruel and unusual punishment. The D.C. District Court temporarily suspended the executions on January 12, 2021. However, the next day, the Court of Appeals for the D.C. Circuit reinstated both executions. The D.C. Circuit denied the petition to rehear the case en banc on the afternoon of Thursday, January 14, 2021.
In a final appeal, Mr. Johnson asked the U.S. Supreme Court to reinstate the D.C. District Court’s stay of execution. At 10:00 pm on January 14, 2021, the Supreme Court denied Mr. Johnson’s two pending appeals in unsigned opinions (available here and here). Justices Breyer, Sotomayor, and Kagan noted that they would have reinstated the stay to determine whether the execution by lethal injection would violate the Eighth Amendment given Mr. Johnson’s COVID-19 diagnosis. Justices Sotomayor and Kagan indicated that they also would have granted a stay to allow Mr. Johnson’s remaining legal claims regarding his eligibility for execution to be fully explored.
Dustin Higgs: Executed January 16, 2021
The execution of Dustin Higgs, the thirteenth and final execution carried out by the Trump administration, occurred in the early morning of January 16, 2021. On November 20, 2020, the DOJ set Mr. Higgs’ execution for January 15, 2021. Mr. Higgs was sentenced to death for directing the murder of three women in Maryland in 1996. Mr. Higgs, however, maintained his innocence, and all witnesses confirmed that he did not personally kill any of the victims. The prosecution proceeded with the case under the theory that Mr. Higgs had forced his co-defendant, Willis Haynes, to commit the murders. Mr. Haynes, who pled guilty and was sentenced to life without the possibility of parole, swore in a signed affidavit in 2012 that Mr. Higgs did not force him to commit the murders, reinforcing Mr. Higgs’ innocence claim.
Shortly after his execution date was set, Mr. Higgs petitioned President Trump for clemency. The petition identified the following six reasons Mr. Higgs should be granted relief: (1) he did not kill anyone; (2) a co-defendant received a deal in exchange for his cooperation; (3) his COVID-19 diagnosis put him at increased risk for unconstitutional suffering during the lethal injection; (4) his record of positive adjustment to life in prison; (5) his active and positive relationship with his son; and (6) the mitigating impact of his traumatic childhood.
Mr. Higgs’ execution was briefly delayed by the D.C. District Court. However, the Court of Appeals for the District of Columbia Circuit reinstated Mr. Higgs’s execution. Again, the Supreme Court refused to reinstate the stay based on his recent COVID-19 diagnosis.
In August 2020, the Government filed a motion in the United States District Court for the Southern District of Maryland asking the court to amend Mr. Higgs’ sentence to designate Indiana as the alternative state for purposes of complying with the FDPA. As previously discussed, under the FDPA, a death sentence must be carried out “in the manner prescribed” by the state which imposed the sentence. Mr. Higgs was sentenced to death in Maryland, which abolished capital punishment in 2013; therefore, Maryland state law no longer provided a “manner prescribed” in which to execute Mr. Higgs. Judge Peter Messitte denied the Government’s motion, stating that he did not have the authority to amend the judgment in that manner. The Court of Appeals for the Fourth Circuit agreed and instituted a stay, setting oral arguments to hear the merits of the claim on January 27, 2021.
Then, the Government, in an unusual maneuver, petitioned the U.S. Supreme Court to grant certiorari before judgment. The Supreme Court granted the Government’s petition, deciding the case without hearing any argument and without issuing a written opinion. Justices Breyer, Sotomayor, and Kagan dissented from the decision. Justice Breyer and Sotomayor wrote separately, expressing deep concern over how the U.S. Supreme Court and the Federal Government rushed to ensure these executions were carried out.
Dustin Higgs was the final execution carried out by the Trump administration. The executions were expensive, shrouded in secrecy, and pushed through courts rapidly. Many, including Justices Sotomayor and Breyer, are concerned that not enough attention was given to important legal questions concerning the modern use of the death penalty raised by these cases and hastily disposed of by the Court.
The final five executions in December and January were carried out amid the presidential transition, breaking 130 years of precedent of halting executions during political shifts. The decision to continue the executions during the transition became even more controversial as then President-elect Biden indicated that he would work to end the use of the federal death penalty as soon as he took office. President Biden is the first president to openly oppose the death penalty and propose eliminating the federal death penalty as part of his criminal justice policy platform. Although President Biden vocalized support for ending the death penalty during his campaign and during the transition period, he has yet to formally reinstate a moratorium or speak publicly about his plans to address the use of the federal death penalty. Ultimate authority for ending the federal death penalty rests with Congress. Merrick Garland, in his confirmation hearing to become U.S. Attorney General, noted his growing concerns over using the death penalty.