As President Donald Trump’s final days in office wound down, what has been called the machinery of death sped up.
When Dustin John Higgs was executed early Saturday morning for a 1996 triple murder in Prince George’s County, he became the third federal inmate to be put to death in as many days and the 13th in the last six months of Trump’s presidency.
This unprecedented rush to final judgment — more federal inmates were executed in one year under Trump than during any year of any previous president since the 1800s — prompted back-and-forth legal decisions this week culminating in fiery dissents from two Supreme Court justices, taking to task both the current administration and their colleagues on the now solidly conservative bench.
“Throughout this expedited spree of executions, this Court has consistently rejected inmates’ credible claims for relief,” Justice Sonia Sotomayor wrote in her dissent of Higgs’ execution going forward. “This is not justice.”
For the sister of one of Higgs’ victims, however, the punishment brought some measure of retribution, however incompletely.
“On the one hand, I felt we were finally going to get justice, but on the other, I felt sad for your family,” said a statement released by federal prison officials that was attributed to an unnamed sister of Tanji Jackson, 21, one of the murdered women. “They are now going to go through the pain we experienced.
“Your death will not bring my sister or the other victims back,” she wrote. “This is not closure, this is the consequence of your action.”
The resumption of federal executions may well be temporary. President-elect Joe Biden, who takes office Wednesday, opposes the death penalty now even though he sponsored a crime bill that expanded it.
Until the Trump administration resumed executing people sentenced to death, the federal government had not put any inmates to death in 17 years. While capital punishment remains legal in 28 states, several have imposed moratoriums, and overall, the number of executions has declined over the past 20 years.
Sotomayor along with Justice Stephen Breyer, who in his own dissent to Higgs’ execution questioned whether the death penalty is even constitutional, are just the latest jurists to wrestle with an issue so vexing that it prompted one predecessor, Justice Harry Blackmun, to declare in 1994: “From this day forward, I no longer shall tinker with the machinery of death.”
Some of the 13 federal inmates executed under Trump had appealed on the basis of issues that have previously been raised, such as the inmates’ mental illness or age at the time of the crime.
But Higgs and another inmate, Cory Johnson, 52, who was convicted of murdering seven people in Virginia, raised an issue of the current moment: the coronavirus pandemic.
Both had been diagnosed with COVID-19, which they argued made them more vulnerable to developing flash pulmonary edema, or the rapid accumulation of fluid in the lungs, when given the lethal injection. The excruciating pain it would bring on, they argued, violated their Eighth Amendment protection against cruel and unusual punishment.
U.S. District Judge Tanya S. Chutkan agreed, and on Tuesday granted what turned out to be a temporary delay; she was quickly overruled by higher courts. Johnson was executed Thursday, and Higgs, the final scheduled by federal authorities, early Saturday.
With the advent of the pandemic last year, states began discontinuing executions, deeming it too risky to bring together the large number of staff, witnesses and others needed in a confined space to carry out the process.
Yet federal officials resumed executions. Conducted at a U.S. prison complex in Terre Haute, Indiana, which houses the federal death row, the executions have proved to be “super-spreader” events, defense attorneys charge, leading to outbreaks of COVID-19 among the prison population, staff, lawyers and others.
“There was no reason to kill [Higgs] particularly during the pandemic and when he, himself, was sick with COVID that he contracted because of these irresponsible, super-spreader executions,” said Shawn Nolan, who represented the one-time Laurel resident.
“Shame on all of those involved,” he said.
By Friday, Higgs had one issue pending before the Supreme Court, involving a law requiring federal executions to follow the procedures of the state in which the crime occurred. But Maryland abolished the death penalty in 2013, and a federal judge in Greenbelt, who was asked to designate the use of another state’s procedures, ruled in December that he was not authorized to amend Higgs’ sentence in that way.
The Supreme Court reversed that ruling on Friday night as well.
In his dissent, Breyer said the impact of COVID-19 is among the issues that did not get full consideration in the “hurry up, hurry up” rush toward execution.
Sotomayor agreed, saying the government offered “no compelling reason why it suddenly cannot wait a few weeks while courts give his claim the consideration it deserves.”
Leigh Goodmark, a University of Maryland law professor, is among those who believe the reason lies in the coming transition in the White House.
“The rush is because on Wednesday a president is coming into office who says he’s not going to kill people,” she said.
Goodmark, who launched the law school’s Gender Violence Clinic, was among those who advocated to spare the life of Lisa Montgomery, who was executed early Wednesday morning, the first female federal inmate to be put to death since the 1950s.
In the haste to execute, she said, courts did not spend adequate time to consider the tortuous sexual abuse Montgomery, 52, endured since childhood and which was “directly tied to the crime” of killing another woman and taking her unborn child, or the severe mental illness that left her not understanding her punishment.
Robert Blecker, a professor emeritus of criminal law and constitutional history at New York Law School, said he anticipates another moratorium on federal executions when Biden takes office.
“And that’s appropriate, from a constitutional perspective of executive prerogative,” said Blecker, who supports the death penalty but says how it’s applied needs to be reformed.
If the death penalty is abolished, Blecker said, he questions how “the worst of the worst of the worst” would be punished.
“It’s all and only about justice,” he said.
Higgs’ supporters have long argued that because he did not shoot the women himself, but was said to have ordered another man to kill them, he should not have received the death penalty.
On Jan. 27, 1996, the bodies of three women, Jackson; Mishann Chinn, 23; and Tamika Black, 19, were found along a desolate stretch of Route 197 in the Patuxent Wildlife Research Center in Prince George’s County.
Because that land is owned by the U.S., the case was tried in federal rather than state court.
The women had been with Higgs and two other men at his apartment when a dispute arose. The women left, but accepted a ride with the men. Instead of taking them home, Higgs drove to the isolated area and, according to testimony, gave a gun to one of the other men, Willis Haynes, and told him to “make sure they’re all dead.”
Haynes was separately convicted in the murders and sentenced to life in prison. He has since provided a signed statement to Higgs’ lawyers, saying that contrary to what prosecutors argued in the case, Higgs did not order him to kill the women.
Relatives of the victims said at the time of his sentencing that they believed the punishment was just. They could not be reached for comment more recently.
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According to The Associated Press, when Higgs was asked if he had any last words, he named each of the victims but denied ordering their killings. He was pronounced dead at 1:23 a.m.
“The government completed its unprecedented slaughter of 13 human beings,” Nolan said in a statement.
The scale and pace of the federal executions proved troubling to Sotomayor as well.
“After seventeen years without a single federal execution, the Government has executed twelve people since July,” she began her dissent, going on to give name to each of them.
“Today, Dustin Higgs will become the thirteenth,” she said. “To put that in historical context, the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades.”
Ten pages later, she finished.
“Those whom the Government executed during this endeavor deserved more from this Court,” Sotomayor wrote. “I respectfully dissent.”