Federal judge orders delay of Maryland man’s Friday execution

A U.S. District Judge in Washington has delayed the execution of two federal inmates, including a Maryland man scheduled to die Friday, the last of a group ordered to be executed by the Trump administration in its final days in office.

Judge Tanya S. Chutkan cited the raging coronavirus pandemic in delaying the executions of Dustin John Higgs, 48, formerly of Laurel, and Cory Johnson, 52, previously of Richmond, Virginia, who both have tested positive for COVID-19.


The lawyers representing Higgs and Johnson argued, and Chutkan agreed, that the lung damage they have suffered as a result of COVID would increase their risk of painful edema, or accumulation of fluid in the lungs, after they are given the lethal injection but before it kills them. The amount of pain the doomed men would suffer, their lawyers said, is a violation of the constitutional protection against cruel and unusual punishment.

“This will subject [Higgs and Johnson] to a sensation of drowning akin to waterboarding,” Chutkan wrote in granting a delay to their executions until March 16.


The delay is critical because Johnson and Higgs were scheduled to die Jan 14 and 15, just days before President Donald Trump leaves office and President-elect Joe Biden is inaugurated. Biden has pledged to abolish the federal death penalty.

Chutkan’s ruling may not be the final word. In November, she issued an injunction that delayed the execution of another federal inmate, Orlando Hall. But just hours later, the Supreme Court, over the dissent of its three liberals, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, cleared the way for him to be executed that night.

The Justice Department filed notice Tuesday evening that it would appeal Chutkan’s ruling as well.

Late Tuesday night, after a flurry of last-minute appeals, the Supreme Court allowed the execution of another federal inmate, Lisa Montgomery, 52, to proceed. Lisa Montgomery, 52, was pronounced dead at 1:31 a.m. Wednesday after receiving a lethal injection at the federal prison complex in Terre Haute, Indiana.

In the Maryland case, Higgs was convicted in the 1996 murder of three women in Prince George’s County. The case was tried in federal rather than state court because the crime occurred on U.S.-owned land, the Patuxent Wildlife Research Center.

Family members of the victims said at the time they believed Higgs’ death sentence was just. One victim’s mother declined to comment last week; other family members could not be reached.

Higgs and Johnson, convicted of killing seven people in Virginia, were among a group of inmates given execution dates last year after a 17-year hiatus in which no federal prisoners had been put to death. But under Trump, a vocal supporter of capital punishment, 10 federal inmates were executed last year, the most for any president since the 1800s, and the final three were scheduled for this week.

Higgs’ lawyer Shawn Nolan said his client contracted COVID-19 because of the “super-spreader executions” the federal government has conducted at the penitentiary in Terre Haute, Indiana.


“He is still experiencing many debilitating symptoms of the disease, including worsening of pre-existing health issues,” Nolan, a public defender, said in a statement.

“Today’s ruling correctly bars the government from subjecting Dustin to the agony of flash pulmonary edema that he would experience during execution, due to the disease the government itself exposed him to.”

“Given the widespread COVID outbreak on the federal death row and in the larger Terre Haute community, the government should stop its efforts to carry out Dustin’s execution during this raging pandemic.”

Judge Chutkan said the government’s continued executions during the pandemic endangers the lives of those who gather at the facility to witness or carry them out.

“This is irresponsible at best,” she wrote. “The public interest is not served by executing individuals in this manner.”

The Supreme Court also has been petitioned by federal attorneys in a separate case to allow Higgs’ execution to go forward.


Higgs’ defenders have argued that he does not deserve to die because he didn’t shoot the women himself. Prosecutors argued that he ordered another man to kill the women, and that man received a life sentence in a separate trial.

On Jan. 27, 1996, the three women — Tanji Jackson, 21; Mishann Chinn, 23; and Tankia Black, 19 — were found shot to death along a desolate stretch of Route 197 in the Patuxent Wildlife Research Center. Because the land is federally owned, the case was prosecuted by the U.S. Attorney’s Office.

According to trial testimony, the three women had been at Higgs’ apartment in Laurel when a dispute arose. The women left, but accepted a ride with Higgs and two other men, thinking they would be driven home. Instead, Higgs drove to the isolated area and, according to testimony, gave another man, Willis Haynes, a gun and told him to “make sure they’re all dead.”

Haynes 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.

Then-Attorney General William Barr ordered the resumption of federal executions in July, and since then 10 inmates have been put to death. Three more were scheduled for Trump’s final days in office this week, concluding with Higgs.

Although Biden sponsored the 1994 crime bill that expanded the use of the federal death penalty, Biden has since called that bill “a mistake” and pledged to end it.

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