Austen Leake/The Tribune-Star via AP
Protesters stand across Prairieton Road from the federal death chamber, December 11, 2020, in Terre Haute, Indiana.
Lisa Montgomery, the only woman on federal death row, was scheduled to be executed today, until a judge late last night issued a stay of execution, pending a competency hearing. The hearing, which has not yet been scheduled, would determine if Montgomery is “competent” to be executed. If she is put to death, Montgomery will be the first woman executed by the federal government in nearly 70 years.
The delay likely means that Montgomery’s next scheduled execution date won’t come until after Joe Biden’s inauguration. Biden has said he opposes the death penalty, so it’s unclear if he would push to carry out executions.
But the Trump administration intends to execute two more people this week as part of an unprecedented spree of executions by the federal government. For the first time, the federal government carried out more executions in 2020 than all the states combined. Even as Congress seeks to impeach and remove President Trump, his administration continues to carry out executions in its final days.
Montgomery’s initial execution date, set for last October, was first delayed because her lawyers contracted COVID-19 while visiting her in prison.
In October, Montgomery’s attorney Kelley Henry released a statement saying that though Montgomery “committed a terrible crime” and has accepted full responsibility, her case was poorly managed by an “incompetent lawyer.”
“Her severe mental illness and the devastating impacts of her childhood trauma make executing her a profound injustice,” Henry continued. “Few human beings have lived through the kind of torture and trauma that was inflicted on Lisa Montgomery by her mentally ill, alcoholic mother. From a young age, Lisa was sexually trafficked, told she had to ‘earn her keep,’ and repeatedly gang raped by adult men. The abuses Lisa endured exacerbated a genetic predisposition to mental illness inherited from both sides of her family.”
“Instead of recognizing Lisa as a trafficking victim,” Henry concluded, “the government suggested she was complicit in the incest and abuse she suffered.”
In 2004, Montgomery was arrested and charged with killing Bobbie Jo Stinnett and kidnapping her eight-month-old fetus.
Montgomery’s is not the only scheduled execution for this week. The federal government also plans to put to death Corey Johnson and Dustin Higgs. In 1992, Johnson was part of a gang that was convicted of killing ten in Richmond. He has spent the last 27 years on death row. Johnson was tried for the murders of seven. Johnson’s lawyers maintain that he is intellectually disabled and that it would be unconstitutional to execute him.
Dustin Higgs is also scheduled to be executed on January 15. His lawyer, Shawn Nolan, said he is hopeful the defense will be able to delay the execution. Nolan is chief attorney for the Capital Habeas Unit of the Federal Defender Office in the Eastern District of Pennsylvania.
Higgs has tested positive for COVID-19, and X-rays of his lungs show extensive damage, Nolan told the Prospect. “If [the judge] allowed that execution, Dustin will basically be waterboarded to death and we argue that’s not allowed under the Eighth Amendment,” Nolan said. The Eight Amendment prohibits cruel and unusual punishment.
Higgs did not kill anyone, but his case was built around allegations that he directed Willis Haynes to kill three women in a park. Haynes was sentenced to life in prison without parole, but in sworn testimony, Haynes says that the case against Higgs “was bullshit.”
Nolan says that Higgs has been a “model prisoner,” which is something judges may take into account. During the more than two decades that Higgs has been incarcerated, he has maintained close ties to his family. Higgs’s son was an infant when Higgs first went to prison, but Higgs has kept in close contact with him despite his solitary confinement. According to Nolan, Higgs’s son wrote a letter to Trump asking him to stop the execution. “My father was always there for me to confide in, to laugh with, to cry with, and even get upset with,” wrote Da’Quan Darby in his letter. “I cannot imagine or think of where I could’ve ended up without the love and encouragement of my father.”
An online petition supporting clemency for Higgs has nearly 300,000 signatures. Similarly, a MoveOn petition with more than 270,000 signatures demands Trump delay Montgomery’s execution. “The story of Lisa’s life is worse than a nightmare,” the petition states. “Her severe trauma and mental illness led directly to the crime for which she was convicted.”
Advocates say Biden can end Trump’s execution spree by commuting death sentences to life in prison. For the 17 years in which there was a pause on federal executions before Trump recommenced them last year, death row remained intact. By commuting the sentences of those on death row to lesser sentences, advocates say Biden can prevent future presidents from carrying out as many executions.
Two of Nolan’s clients were executed last year by the federal government: Dustin Lee Honken and Alfred Bourgeois. Nolan said he witnessed Honken’s execution. “It’s been a difficult year to do this work,” he said. “It’s very intense work and the fact that the government is moving forward with these multiple executions under pandemic conditions—it’s just insane.”
An end to the federal death penalty would require an act of Congress.
“People with means don’t get sentenced to death,” Nolan told the Prospect. “People who get sentenced to death have lawyers who are not looking deeply into their cases. We’ve seen so many examples of lawyers not looking into their clients’ backgrounds at all to present mitigating evidence.”
This article has been updated.
Editor’s note: In the early hours of January 13, the government executed Lisa Montgomery at Terre Haute Federal Correctional Complex in Indiana. The executions of Corey Johnson and Dustin Higgs have been temporarily halted in light of their COVID-19 diagnoses.
