Capital Punishment
January 16, 2021

The United States government on Friday night executed Dustin Higgs — the 13th federal death row inmate to be executed since the Justice Department resumed federal capital punishment in July 2019 after a 17-year gap — at the federal penitentiary in Terre Haute, Indiana.

The Supreme Court declined to stay the final execution under the Trump administration, despite an appeal from Higgs' attorney Shawn Nolan, although some justices dissented. Justice Sonia Sotomayor called it an "unprecedented rush," arguing the government "should have proceeded with some measure of restraint to ensure it did so lawfully."

Higgs, along with two other men, was convicted of kidnapping and murdering three women in 1996. He has maintained his innocence of the murder, proclaiming with his final words, per CNN, "I'd like to say I am an innocent man. I did not order the murders."

Nolan argued the execution should have been delayed after Higgs was recently diagnosed with COVID-19, and also that he was unfairly sentenced considering the actual gunman is serving a life sentence.

Former Rep. Justin Amash (I-Mich.) was among those to criticize the execution, claiming President Trump wanted to move swiftly before President-elect Joe Biden, who has opposed the death penalty, takes office. Read more at NPR and CNN. Tim O'Donnell

January 15, 2021

The Trump administration executed Corey Johnson on Thursday night, after the Supreme Court lifted stays on both Johnson's execution and another one scheduled for Friday. Both Johnson and the other inmate, Dustin Higgs, tested positive for COVID-19, and their lawyers had argued that the execution drug pentobarbital would cause excruciating pain on the COVID-infected lungs. Johnson's lawyers also pointed to evidence that he was severely mentally disabled. The court's three liberal justices voted to halt the execution.

Johnson was convicted of killing seven people in a bloody 1992 drug war in Richmond, Virginia. He was pronounced dead at 11:34 p.m., The Associated Press reports, and reporters heard clapping and whistling from a room reserved for the relatives of his victims. What sounded like praying was heard in a room for Johnson's family members. His last words, aimed in their direction, were "love you." He apologized to his victims and their families in a separate statement.

Johnson is the 12th federal inmate put to death since President Trump and former Attorney General William Barr ended a 17-year halt on federal capital punishment in July. President-elect Joe Biden, who will be inaugurated in less than a week, is opposed to capital punishment and has pledged to reinstate the moratorium.

Higgs' fate is still up in the air due to another legal dispute involving a federal law that requires inmates to be executed using the techniques approved in the states where they were sentenced. Maryland, which convicted Higgs in 2000 for the 1996 killings of Tamika Black, Tanji Jackson, and Mishann Chinn, abolished the death penalty in 2013. An appellate court has scheduled a hearing to consider the legal quandary for Jan. 27, a week after Biden is sworn in. The Justice Department has asked the Supreme Court to step in and overrule that court so Trump can get his 13th and final execution. Peter Weber

January 13, 2021

The Justice Department executed Lisa Montgomery, 52, by lethal injection early Wednesday, shortly after the Supreme Court lifted two stays from lower courts. She was pronounced dead at the federal penitentiary in Terre Haute, Indiana, at 1:31 a.m. A federal judge in Indiana had halted her execution Monday night, citing the "ample evidence that Ms. Montgomery's current mental state is so divorced from reality that she cannot rationally understand the government's rationale for her execution." Montgomery was the first woman put to death in federal custody since 1953 and the 11th federal inmate executed since President Trump lifted a 17-year hiatus on capital punishment in July.

"The craven bloodlust of a failed administration was on full display tonight," Montgomery's attorney Kelley Henry said in a statement. "Everyone who participated in the execution of Lisa Montgomery should feel shame."

A separate federal judge in Washington, D.C., issued stays Tuesday on two more federal executions scheduled for Thursday, citing positive COVID-19 tests for the inmates, Corey Johnson and Dustin Higgs. "The three executions were to be the last before President-elect Joe Biden, an opponent of the federal death penalty, is sworn-in next week," The Associated Press reports. "Delays of any of this week's scheduled executions beyond Biden's inauguration next Tuesday would likely mean they will not happen anytime soon, or ever."

Montgomery was convicted of the 2003 murder of 23-year-old Bobbie Jo Stinnett and abduction of her unborn child. Her lawyers say she is mentally ill after being subject to years of "sexual torture." Henry told AP on Tuesday morning that Montgomery was transferred to the Terre Haute prison Monday night, and "I don't believe she has any rational comprehension of what's going on at all." After the Bureau of Prisons took Montgomery's glasses away in October, out of concern she would kill herself, she had been unable to do needle-point or any of her other "coping mechanisms," Henry said. Peter Weber

January 12, 2021

A federal judge in Indiana late Monday halted Tuesday night's execution of Lisa Montgomery, convicted in 2007 for the 2004 murder of a pregnant Missouri woman, ruling that Montgomery needs to undergo an evaluation of her mental competence to face execution. The federal government had halted capital punishment in 2003, but President Trump and then–Attorney General William Barr started executing prisoners again in July. Montgomery was scheduled to be the 11th person executed under Trump and the first woman put to death in federal custody since 1953, The Topeka Capital-Journal reports.

Last-minute stays in death penalty cases are typically a stalling tactic, U.S. District Judge Patrick Hanlon wrote, but he saw enough merit in Montgomery's stay petition to halt the execution for now. "Ms. Montgomery has been diagnosed with physical brain impairments and multiple mental illnesses, and three experts are of the opinion that, based on conduct and symptoms reported to them by counsel, Ms. Montgomery's perception of reality is currently distorted and impaired," Hanlon said.

Montgomery was convicted of driving from her home in Kansas to the Missouri home of Bobbie Jo Stinnett, then strangling Stinnett, cutting open her abdomen, removing her unborn daughter in a crude C-section, then trying to pass the child off as her own. Hanlon did not set a date for Montgomery's competency hearing, saying only it will occur "in due course." President-elect Joe Biden, who opposes the death penalty, takes office in one week.

The federal penitentiary in Terre Haute, Indiana, is also scheduled to execute two more inmates on Thursday, Dustin Higgs and Corey Johnson. Trump has already put to death more prisoners than any president since 1896, and his execution spree comes as capital punishment has fallen out of favor in much of the U.S. There were seven state executions in 2020, a 37-year-low. Peter Weber

March 23, 2020

Colorado Gov. Jared Polis (D) signed a bill on Monday abolishing the death penalty. Colorado is the 22nd state to ban capital punishment since it was reinstated by the Supreme Court in 1976.

Polis also commuted three death sentences to life in prison without the possibility of parole, saying the "commutations of these despicable and guilty individuals are consistent with the abolition of the death penalty in the state of Colorado, and consistent with the recognition that the death penalty cannot be, and never has been, administered equitably in the state of Colorado."

Polis stated that he commuted the sentences "after a thorough outreach process to the victims and their families," and while he understands "some victims agree with my decision and others disagree, I hope this decision provides clarity and certainty for them moving forward." The state's last execution was in 1997, NBC News reports. Catherine Garcia

May 15, 2019

In an opinion earlier this month, the Justice Department's Office of Legal Counsel decided that the Food and Drug Administration "lacks jurisdiction" over drugs used to kill inmates through lethal injection, The Washington Post reports. The Justice Department is siding with Texas, which sued the FDA in early 2017 over the agency's 2015 seizure of 1,000 vials of the anesthetic sodium thiopental — once commonly used in lethal-injection cocktails — from an unregistered overseas distributor.

The issue has caused tension in the Trump administration. More than a year ago, the Post reports, Attorney General Jeff Sessions and FDA Commissioner Scott Gottlieb — both of whom left the administration last year — had a heated argument in the White House Situation Room, with Sessions demanding that Gottlieb allow execution drugs into the U.S. without any scrutiny and Gottlieb refusing.

The Justice Department's new opinion is pretty sweeping, arguing that "articles intended for use in capital punishment by a state or the federal government cannot be regulated as 'drugs' or 'devices'" by the FDA. But the opinion applies only to the death penalty, the OLC added, not whether the FDA "has jurisdiction over drugs intended for use in physician-assisted suicide."

It isn't clear what affect the OLC decision will have. Imports of sodium thiopental have been blocked under a federal injunction since 2012. Hospira, the sole U.S. maker of sodium thiopental, stopped producing it in 2011, citing its use in capital punishment. The OLC opinion seems aimed at "giving a green light" to states to import execution drugs from China, India, and other countries that don't object to their use in executions, Deborah Denno, a law professor at Fordham University, tells the Post. "It has the potential to open the floodgates."

But the 2012 injunction is still in effect for now, the Post notes, and "it is not clear whether the Justice Department will seek to have that injunction lifted, a move that could spark a long legal tussle." Peter Weber

February 8, 2019

Late Thursday, Alabama put to death a Muslim inmate who lost his legal challenge to have an imam in the chamber with him during his execution.

Domineque Ray, 42, was convicted in 1999 of the rape and murder of 15-year-old Tiffany Harville in Selma, Alabama. His lawyers filed a lawsuit last week arguing that Ray's rights were being violated because the prison would not let his imam go into the execution chamber with him. In Alabama, a Christian chaplain, employed by the prison, is typically in the chamber during executions. Attorneys for the state argued that for security reasons, prison employees are the only ones allowed to be in the chamber; ultimately, the state agreed to keep the chaplain out during Ray's execution.

On Wednesday, an appeals court stayed the execution, but the Supreme Court voted 5-4 on Thursday evening to let the execution proceed, saying it was because Ray did not bring up his religious argument until Jan. 28, The Associated Press reports. In a dissent, Justice Elena Kagan said she found it "profoundly wrong" that the execution was going forward under such circumstances. Ray's imam was in the witness room next to the chamber during the execution.

Alabama Corrections Commissioner Jeff Dunn said the state has never encountered an inmate who had a problem with the chaplain being in the execution chamber, AP reports, and they will examine the procedures to see if anything should be changed. Catherine Garcia

October 11, 2018

The Washington state Supreme Court ruled on Thursday that the death penalty violates the state constitution, The Seattle Times reports.

Prisoners on death row have had their sentences converted to lifetime imprisonment. The justices said that they ruled the death penalty unlawful because "it is imposed in an arbitrary and racially biased manner."

The ruling was sparked by Allen Eugene Gregory, whose lawyers argued that the death penalty is not applied fairly. Justices agreed, noting that "this particular case provides an opportunity to specifically address racial disproportionality," but in general, its application is also affected by "where the crime took place, or the county of residence, or the available budgetary resources at any given point in time."

Washington Governor Jay Inslee (D), who previously pledged that no executions would take place during his time in office, celebrated the ruling, calling it a "hugely important moment in our pursuit for equal and fair application of justice." Summer Meza

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