The Supreme Court on Friday allowed the federal government to execute Dustin Higgs by reversing the order of the lower courts that put the execution on hold and pulling dissidents strongly worded by two judges.
The execution of Higgs was the third federal execution this week and concludes a push by the Trump administration to carry out death sentences prior to the inauguration of President-elect Joe Biden, who opposes the death penalty.
In a brief, unsigned ruling issued around 11 p.m., judges overruled a federal district judge who concluded last month that he was not empowered to give the go-ahead for execution. And the judges bypassed the U.S. 4th Circuit Court of Appeals, which granted a stay of execution this week, to give that court time to consider the final legal issue on the case.
It was a technical question: whether the government could execute Higgs under Indiana law, even though Higgs was sentenced in Maryland and his verdict did not state that he could be executed under Indiana law.
A majority in the Supreme Court ruled that the government’s plan was acceptable. The court relied on an infrequently used process to take the case from the appeals court and designate Indiana as the governing law – a decision that allowed the government to begin conducting the execution immediately.
Judges Stephen Breyer, Sonia Sotomayor and Elena Kagan said they did not allow the execution. Breyer and Sotomayor each wrote dissent, lamenting the recent spate of executions – and the role of the court in permitting them. The federal government has executed 13 people in the past six months, and has prevailed on every death penalty appeal received by the Supreme Court during that time.
“After waiting nearly two decades for federal executions to resume, the government should have exercised a degree of restraint to legitimately ensure this,” Sotomayor wrote. “If it wasn’t, this court should have done it. It has not.”
Higgs, 48, received a fatal injection and was pronounced dead at 1:23 a.m. on Saturday morning.
The Supreme Court decision on Friday night came about 24 hours after the court dismissed an urgency appeal filed by Higgs and another person on death row, Corey Johnson. Both Higgs and Johnson had recently contracted COVID-19 in prison, arguing that lung damage from the virus would create the risk of undue suffering during their fatal injections. The court denied their motion to suspend their executions while they recovered from the virus. Johnson was executed late Thursday night.
However, one final legal obstacle stood in the way of the government’s scheduled execution of Higgs on Friday. Under federal capital punishment law, death sentences handed down in federal court must be “implemented in the manner prescribed by the law of the state in which the sentence is imposed”. If the underlying state does not have a procedure for the death penalty, the federal court sentencing the death sentence must designate another state as the governing law for enforcement.
Higgs was convicted in federal court in Maryland in 2000 of the murder of three women – Tamika Black, Tanji Jackson, and Mishann Chinn – at Patuxent National Wildlife Refuge. At the time of his conviction, his formal sentence implied that Maryland law would regulate his execution. But Maryland abolished the death penalty in 2013. That meant there was no longer any Maryland law that the government could apply under the Federal Death Penalty Act.
Last year, when the Department of Justice decided to go ahead with Higgs ‘execution, it asked a federal judge to change Higgs’ judgment and make Indiana law the governing law. The federal execution chamber is in Terre Haute, Indiana, and Higgs was imprisoned there for almost 20 years.
On December 29, US District Judge Peter Messitte ruled that he lacked the authority to approve the government’s motion to change the sentence. When the government appealed, the 4th Circle scheduled an oral hearing on the matter on January 27, almost two weeks after the government’s scheduled execution date. Then, on Wednesday, the 4th Circle issued a stay of execution and officially put the execution on hold while they investigated the case.
The government came to the Supreme Court asking him to revoke his residency and designate Indiana law as the relevant state law under the FDPA. The court granted the government’s motion in a four-sentence order without reason.
From a procedural point of view, the court’s decision was highly unusual. It was an accelerated decision on the merits of a case that came to the court as a petition for “certiorari before judgment” – legal jargon for a process in which judges can intervene and resolve a case before an appeals court has decided. Such interventions are unusual and in the rare cases in which the court examines cases in this manner, they are usually only resolved after an oral hearing and extensive consultation, none of which have occurred here.
In their dissidents, Breyer and Sotomayor said the court was taking unusual and “exceptional” measures not to fully address serious legal issues. Breyer accused the majority of taking a “hurry up, hurry up” approach on this case and other recent death penalty complaints.
“How fair is a legal system that would execute a person without considering some novel or significant legal issue that they raised?” Breyer wrote. Problems related to the death penalty raise questions of constitutionality – a point he raised earlier.
Sotomayor began her protest by listing the names of the 13 people executed by the federal government since July last year, when the Trump administration ended a 17-year unofficial moratorium on federal executions. And she accused the court of essentially stamping those executions.
“Unfortunately, it is not surprising that the court allows this extraordinary motion,” she wrote of the decision to allow Higgs to be executed. “Over the past six months, this court has repeatedly bypassed its normal deliberative procedures, often at the request of the government, in order to advance an unprecedented, breakneck schedule for executions. With due judicial review, some government arguments may have prevailed and some or even many of these executions were ultimately allowed. Others may not have been. In any event, the court should not have authorized these executions without resolving these critical issues. The stakes were just too high. “
James Romoser, If there are sharp disagreements, the court steps in so the federal government can execute the 13th person in six months.
SCOTUSblog (January 16, 2021, 2:44 a.m.), https://www.scotusblog.com/2021/01/over-sharp-dissents-court-intervenes-to-allow-federal-government-to-execute-13th – Person-in-six-months /