A back-and-forth legal battle continued into the final hours before Dustin Higgs, 48, convicted in a triple murder in Prince George’s County in 1996, is scheduled to be executed Friday, which would make him the last federal inmate to be put to death under President Donald Trump as he leaves office.
Higgs’ fate now lies with the U.S. Supreme Court, which Thursday night rejected one of two pending appeals to spare his life. The high court lifted a delay granted by a federal judge in Washington earlier in the week to Higgs and another federal inmate, Cory Johnson, 52, due to their diagnoses of COVID-19.
Johnson, convicted of murdering seven people in Virginia, was executed at 11:34 p.m. Thursday, according to The Associated Press. Higgs has another case remaining before the Supreme Court.
As with previous death penalty cases, the three liberal justices, Stephen Breyer, Sonia Sotomayor and Elena Kagan, “would have granted” a stay of execution according to the brief order posted on the Supreme Court website.
On Tuesday, U.S. District Judge Tanya S. Chutkan had delayed the executions of Higgs and Johnson until at least March 16, citing their diagnoses of COVID-19 that she determined might cause undue suffering when administered the lethal injection. That, Chutkan ruled would violate their constitutional protection against cruel and unusual punishment.
On Wednesday night, a divided three-judge panel of the U.S. District Court of Appeals rejected the delay and ordered the execution to go forward as scheduled, a ruling that was upheld by the full court Thursday.
The appellate court order did not give a vote total but noted that two judges did not participate, including Merrick B. Garland, recently nominated by Biden to become attorney general and thus head of the Justice Department.
Should Higgs lose his final appeal, he would become the 13th federal inmate killed since the Trump administration resumed executions in July after a 17-year hiatus. Critics contend that the administration has rushed the executions because President-elect Joe Biden, who will be inaugurated Jan. 20, has pledged to abolish the federal death penalty.
The string of federal executions come at a time when states and other countries around the world were increasingly putting fewer people to death. The advent of the coronavirus pandemic made executions even rarer, as states were wary of gathering in a confined space the number of staff, witnesses and others necessary to carry them out.
And in fact, inmates’ attorneys argue the federal executions at the U.S. Penitentiary in Terre Haute, Indiana, which houses death row, have become superspreader events themselves.
“Dustin Higgs contracted COVID-19 because of the government’s irresponsible actions in carrying out executions during the pandemic, and his lungs are still damaged as a result of the infection,” his public defender, Shawn Nolan, said in a statement.
Early Wednesday morning, after a similar flurry of last-minute appeals, another inmate, Lisa Montgomery, 52, was executed — the first woman to be put to death federally since the 1950s.
Higgs was tried in federal court because the murders took place on U.S.-owned land.
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On Jan. 27, 1996, three women — Tanji Jackson, 21; Mishann Chinn, 23; and Tamika Black, 19 — were found shot to death along a desolate stretch of Route 197 in the Patuxent Wildlife Research Center in Prince George’s County.
According to trial testimony, they had been at Higgs’ apartment in Laurel when a dispute arose. The women left, but accepted what they thought would be a ride home with Higgs and two other men. Instead, they were driven to the isolated area and, according to testimony, Higgs 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 an affidavit to Higgs’ lawyers, saying that contrary to what prosecutors argued in the case, he was not ordered to kill the women.
Higgs’ supporters argue that since he did not shoot the women himself, he does not deserve the death penalty. 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.
Earlier this week, federal attorneys petitioned the Supreme Court to reverse another case involving Higgs’ execution.
That case is based on a federal rule requiring that executions follow the procedures of the state in which the crime occurred. But Maryland no longer allows the death penalty, having abolished it in 2013, a dozen years after Higgs was sentenced.
In such cases, federal law calls for an alternate state’s procedures to be used, but U.S. District Judge Peter J. Messitte ruled in December that he did not have the authority to amend Higgs’ sentence in that way.