February 09, 2021 Supreme Court

Justice Sotomayor’s Dissent in United States v. Higgs Rebukes Supreme Court Practices During Federal Execution Spree

Annika Russell, DPRP Intern

Early in the morning on Saturday, January 16, 2021, Dustin Higgs became the thirteenth and final person to be executed by the federal government under the Trump administration since July 2020. The Supreme Court cleared the way for Mr. Higgs’ execution by issuing an unsigned ruling around 11p.m. E.T. on Friday night. This ruling reversed the decision of a federal district judge and overturned a stay enacted by the U.S. Court of Appeals for the Fourth Circuit. None of the six justices in the majority offered a written explanation of their decision. Justices Breyer, Kagan, and Sotomayor all indicated that they would have denied the government’s petition to vacate the lower court’s stay. Justices Breyer and Sotomayor elaborated their position in separate dissents.

Justice Sotomayor’s 10-page dissent not only called attention to the unusual procedural tool the Court employed to overturn the stay of execution in Mr. Higgs’ case—a writ of certiorari before judgment—but also summarized many of the major claims and open legal questions the Court failed to address in the prior federal execution cases.

The dissent began by listing the names of all twelve people the federal government had executed in the past six months prior to Mr. Higgs, using historical context to emphasize the unprecedented nature of this execution spree. (These executions were the first to be carried out by the federal government since 2003; and prior to 2003, a total of only three people had been executed by the federal government in the past four decades). Justice Sotomayor then identified the Federal Death Penalty Act (FDPA) and the Justice Department’s 2019 Execution Protocol as two major sources of “deep legal uncertainty,” which spurred understandably contentious and consequential lawsuits when the federal government announced its intention to restart executions. Justice Sotomayor wrote: 

“Rather than permit an orderly resolution of these suits, the Government consistently refused to postpone executions and sought emergency relief to proceed before courts had meaningful opportunities to determine if the executions were legal. […] Very few of these decisions offered any public explanation for their rationale.”

United States v. Higgs

One of the major questions surrounding the impending execution of Dustin Higgs involved the FDPA’s requirement that the federal death penalty be implemented “in the manner prescribed by the law of the State in which the sentence is imposed.” In the event that a prisoner is sentenced to death in a state that does not have the death penalty, the FDPA directs courts to designate an alternate state to govern the process. Mr. Higgs was federally convicted and sentenced to death in Maryland, which outlawed the death penalty in 2013. However, because Mr. Higgs was sentenced in 2001, when Maryland still had the death penalty, no alternate state had been designated to govern the “manner” of his execution.

In August 2020, the federal government requested that the federal district court in Maryland amend its sentence by designating Indiana (the state housing federal death row) as the “alternate” state. On December 29, 2020, U.S. District Judge Peter Messitte denied the government’s motion, holding that he did not have the authority to amend the sentencing order as requested. On appeal, the Fourth Circuit stayed the execution and scheduled an oral argument on the issue for January 27, 2021, nearly two weeks after Mr. Higgs’ scheduled execution date of January 15, 2021.

In order to move forward with the execution on its preferred timeline, the government then petitioned the Supreme Court to grantcertiorari before judgment,” a rarely used power that enables the Court to rule on the merits of a case without allowing for a normal briefing, argument, or ruling to occur at the appellate level. Certiorari before judgment has been described as an extremely unusual maneuver with obscure standards used to leapfrog normal judicial order. Justice Sotomayor’s dissent asserted that these petitions are ordinarily only granted “upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” Citing the government’s failure to act to designate an alternate state to carry out Mr. Higgs’ death sentence in the more than seven years since Maryland abolished the death penalty, Justice Sotomayor underscored the government’s inability to meet the strict standard required to make this procedure appropriate as well as the Court’s refusal to provide any written justification for using this measure to the public. 

Justice Sotomayor’s dissent continued by describing the harmful implications of the government's “breakneck timetable of executions” beyond Mr. Higgs’ individual case. 

Federal Death Penalty Act

According to Justice Sotomayor’s dissent, open questions regarding the proper interpretation of the FDPA have yet to be resolved because “the Court has actively prevented lower courts from providing definitive answers themselves.” In the recent case involving Lisa Montgomery, the federal court of appeals for the D.C. Circuit voted 5-4 to stay the execution, so as to decide en banc – before the full courtthe extent to which the federal government was required to follow state execution protocols under the FDPA. This action by the full D.C. Circuit was significant, as circuit courts rarely vote to reconsider panel decisions en banc. However, the Supreme Court vacated this stay as well, and Ms. Montgomery was executed the following day on January 13, 2021. The questions regarding the FDPA were left unresolved for subsequent cases. 

Another FDPA provision states, “[a] sentence of death shall not be carried out upon a person who is [intellectually disabled].” Justice Sotomayor noted that Alfred Bourgeois and Corey Johnson both presented “substantial evidence” that they should be considered intellectually disabled “under modern diagnostic standards.” Mr. Bourgeois and Mr. Johnson were sentenced in 2004 and 1993, respectively, under outdated diagnostic standards. (Importantly, the Supreme Court outlawed the execution of individuals with intellectual disability, previously termed mental retardation, in 2002; and continued updating its jurisprudence on this issue to reflect current diagnostic standards as recently as 2017). The Court nonetheless allowed the execution of both men, despite never answering the question: does the FDPA require courts to evaluate intellectual disability based on the medical standards prevailing at the time of sentencing or execution?

2019 Execution Protocol

The Justice Department’s 2019 Execution Protocol substituted the previous three-drug cocktail used for lethal injection with one drug: pentobarbital. Daniel Lee, Wesley Purkey, and Keith Nelson argued that using only pentobarbital for executions violates the Eighth Amendment’s ban on cruel and unusual punishment because the drug “causes fluid to rapidly accumulate in the lungs, resulting in ‘extreme pain, terror and panic.’” Despite a federal district court ruling on this issue in favor of Mr. Lee, Mr. Purkey, and Mr. Nelson, the Court vacated the injunction on the grounds that “the government’s ‘competing expert testimony’ rendered a ‘last-minute’ stay inappropriate.” However, Justice Sotomayor pointed out that it was the government who created this “artificial claim of urgency.” Mr. Lee and Mr. Purkey filed their claims shortly after the DOJ scheduled their executions, and Mr. Nelson did so before his execution was even announced.

The issue of pentobarbital was revisited on December 16, 2020, because Corey Johnson and Dustin Higgs both tested positive for COVID–19. After an evidentiary proceeding focused on how lung damage from the virus may increase the tortuous effects of the drug, the same district court that had enjoined the executions of Mr. Lee, Mr. Purkey, and Mr. Nelson issued an injunction in Mr. Johnson’s and Mr. Higgs’ cases in light of evidence that their executions were more likely to be unusually painful on account of their COVID-19 diagnoses. However, a panel of the D.C. Circuit vacated the injunction, and the Supreme Court upheld the D.C. Circuit’s decision on this issue, allowing the executions to proceed.

Additional Legal Challenges

Corey Johnson attempted to reduce his sentence using the First Step Act of 2018 – a law designed to reduce the size of the federal prison population. The district court denied his motion because his crime was not a “covered offense,” which the Fourth Circuit upheld 2-1, with Judge Motz dissenting on the grounds that the definition of covered offense “presents a novel question that is deserving of further consideration.” The full Fourth Circuit then voted 8-7 to deny rehearing the case en banc. The Supreme Court allowed Mr. Johnson to be executed without an appellate court ruling on his claims’ merits. 

Brandon Bernard similarly asserted claims that were never heard on their merits. He alleged that the government violated Brady v. Maryland by withholding exculpatory evidence and eliciting knowingly false testimony that painted Mr. Bernard—only eighteen years old at the time of his crime—as far more dangerous and culpable in the underlying crime than he was in fact. Even though his attorneys demonstrated that there was no way for Mr. Bernard to know about the suppressed evidence when he filed his first habeas petition, the Fifth Circuit decided that his claims should not be heard because they were subject to the general bar on second-or-successive habeas petitions. Justice Sotomayor argued that leaving the Fifth Circuit’s decision intact sets a dangerous precedent that perversely rewards the government for keeping exculpatory information hidden for longer. 

The last cases discussed in the dissent were Wesley Purkey and Lisa Montgomery, both of whom suffered from serious mental illnesses. Months apart, district courts separately concluded that both Mr. Purkey and Ms. Montgomery “were likely to succeed in showing that they had no ‘rational understanding’ of why the State want[ed] to execute [them],’” which would render their executions unconstitutional under the Supreme Court’s decision in Ford v. Wainwright. In Ms. Montgomery’s case, the Seventh Circuit lifted the stay a federal judge in Indiana had placed that would allow for a hearing on Ms. Montgomery’s mental state. Despite the grave constitutional issues raised, the Supreme Court declined to reinstate the stay. In Mr. Purkey’s case, the government bypassed the appellate process and sought relief directly from the Supreme Court, which sanctioned the execution without comment. 

Justice Sotomayor concluded:

“This is not justice. After waiting almost two decades to resume federal executions, the Government should have proceeded with some measure of restraint to ensure it did so lawfully. When it did not, this Court should have. It has not. Because the Court continues this pattern today, I dissent.”

In total, the Court allowed all 13 prisoners to be executed, overturning 14 separate stays of execution from federal district and appellate courts, issued by judges appointed by Republicans and Democrats alike.

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