The Covid-19 pandemic has complicated the Trump administration’s plan to carry out three more executions before Inauguration Day.
A federal judge last week vacated Lisa Montgomery’s Jan. 12 scheduled execution date because the judge had a stay pending when the Justice Department set it. The judge put the stay in place after Montgomery’s lawyers contracted Covid-19 and asked for more time to work on her clemency efforts.
Meanwhile, two other federal inmates scheduled for execution the same week have cited their Covid-19 diagnoses in challenges to their executions.
“It would be a remarkable turn of events if getting infected with the virus literally kept these defendants alive,” said William Jay, co-chair of Goodwin’s appellate litigation practice who worked on capital cases at the Justice Department.
So far, the Justice Department, which has carried out 10 executions since July, including three since Election Day, has signaled no plans to change course.
Dustin Higgs and Corey Johnson, two federal inmates scheduled for execution who contracted Covid-19, were “medically cleared from isolation status” Dec. 27, according to a status report jointly filed Monday by DOJ and the inmates. Both men are still experiencing symptoms, the report said.
Shawn Nolan, a federal defender who is representing Higgs, described the diagnoses as “a game changer.”
“They’ve been having these executions, which are basically super-spreader events, and now it’s come to roost that all of these people are testing positive,” said Nolan, chief of the capital habeas unit for the community federal defender office for the Eastern District of Pennsylvania.
The Bureau of Prisons has acknowledged that multiple federal death-row inmates in Terre Haute, Ind., where inmates live and are executed, have tested positive, but the agency won’t say how many.
President-elect Joe Biden, due to be sworn in Jan. 20, ran on an anti-death penalty platform.
All three inmates’ cases could wind up at the Supreme Court in the coming weeks, before a high court majority that has consistently sided with the government in federal execution cases since July.
Montgomery’s execution could be derailed by the virus in a less direct way.
In a Dec. 24 ruling, a federal judge in Washington said the government improperly scheduled the execution while a stay was pending.
Announcing the Dec. 8 execution date this past fall, former Attorney General William Barr said Montgomery fatally strangled a pregnant woman, Bobbie Jo Stinnett, cut open her body, and kidnapped her baby. Acting Attorney General Jeffrey Rosen, Barr’s former deputy, took over the post from Barr Dec. 23. Like Barr, Rosen supports capital punishment.
Montgomery’s legal team has pointed to her history as a victim of gang rape, incest, and child sex trafficking, and her severe mental illness as reasons for not executing her.
A DOJ spokesperson declined to say for what date, if any, it would seek to reschedule Montgomery’s execution if the order stays in place. She would be the first woman executed by the federal government in nearly 70 years.
The government is appealing the order to the U.S. Court of Appeals for the D.C. Circuit. In its motion to stay the ruling pending appeal, DOJ said “Montgomery received ample notice of her execution date” and “has no equitable interest in enjoying a windfall” from the rescheduling of her execution.
“The Supreme Court has repeatedly recognized the Government and the victims’ compelling interest in the timely enforcement of a death sentence,” DOJ said in its motion.
The government motion cited the high court’s 2019 decision in Bucklew v. Precythe, where the court split 5-4 against a death-row inmate’s Eighth Amendment challenge. The capital punishment gap on the court since then has appeared to widen to a 6-3 spread, with Justice Amy Coney Barrett replacing the late Justice Ruth Bader Ginsburg.
Barr said Johnson murdered seven people “in furtherance of his drug-trafficking activities,” and that Higgs kidnapped and murdered three women. Johnson says his intellectual disability should bar his execution, while Higgs points to the fact that he wasn’t the shooter and that his co-defendant who pulled the trigger was sentenced to life-without-parole.