Posted Wed, Jan 13th 2021 1:41 AM by James Romoser and Angie Gou
The Supreme Court on Tuesday evening cleared the way for the execution of Lisa Montgomery, the first woman to be executed by the federal government in 68 years. Montgomery was convicted in 2008 for strangling Bobbie Jo Stinnett, a Missouri woman eight months pregnant, and pulling the premature baby out to pass off as her own child.
In a series of brief, unsigned orders, the Supreme Court overturned two federal appeals court rulings that put Montgomery’s execution on hold and denied two more last-minute motions claiming Montgomery was entitled to one Shift. In two of the orders, the court’s three liberal judges said they disagreed and would not allow the execution.
Shortly after the court issued its final overnight warrant, Montgomery was killed by a lethal injection at the Terre Haute, Indiana federal penitentiary. She was pronounced dead at 1:31 am
In the past few days, four separate cases related to the Montgomery execution reached emergency judges.
One case concerned the relevance of the Federal Act on the Death Penalty, which provides that federal death penalties are carried out “in the manner prescribed by the law of the state in which the penalty is imposed”. Montgomery, who was convicted in Missouri, argued that the Justice Department violated a Missouri requirement that prisoners be notified at least 90 days before an execution. The U.S. Court of Appeals for the District of Columbia Circuit granted Montgomery a stay of execution late Monday night, saying it had raised an important and unresolved issue about the importance of the FDPA.
The government appealed to the Supreme Court on Tuesday morning, arguing that the FDPA only mandates that the federal government follow a state’s general method of execution. The law does not apply to a state’s procedural rules on issues such as scheduling the date of execution, the government told judges. In a two-sentence decision, the court overturned the DC Circuit’s residence. Judges Stephen Breyer, Sonia Sotomayor, and Elena Kagan stated that they had left the stay in place.
In another case, Montgomery argued that the 2008 verdict that passed her death sentence included a residence permit and she said the residence was never revoked. The government countered that the provision was merely a way of upholding Montgomery’s right to appeal her conviction, and was never intended as an indefinite postponement of her execution. The U.S. Eighth Circuit Court of Appeals agreed to Montgomery Tuesday afternoon, ordering a stay just hours before Montgomery’s scheduled 6 p.m. execution. The government appealed to the Supreme Court, which reversed the 8th circuit and overturned the stay in an order issued around midnight. No judge noticed a rejection of this order.
A third case was whether Montgomery was ineligible for the death penalty due to mental illness. Montgomery’s attorneys argued that she had bipolar disorder, had severe hallucinations, and continued to experience the psychological effects of severe childhood sexual abuse. An Indiana district judge ruled that Montgomery was entitled to a hearing on whether her current state of mind made her unable to understand the government’s reasons for her execution. The district judge issued a stay on Monday, but the U.S. Court of Appeals for the 7th Circuit was quick to overturn that stay. Montgomery asked the Supreme Court to resume residence, but in another brief midnight order the court declined. Breyer, Sotomayor, and Kagan said they granted residency to allow a hearing on Montgomery’s state of mind.
Finally, in a fourth case, Montgomery argued that the Justice Department violated a federal ordinance in plotting her execution. The government originally scheduled her execution for December 8, but a judge issued a stay in November after her lawyers signed COVID-19. The stay was in effect until December 31st. On November 23, while the stay was in effect, the government postponed the execution to January 12. Montgomery argued that the rescheduling violated 28 CFR Section 26.3 (a) (1), it states: “If the date set for the execution has passed due to a suspension, the director of the federal prison office will immediately set a new date if the suspension is lifted becomes.”
Montgomery alleged that under the ordinance, the Department of Justice would have to wait until the end of their stay before setting a new execution date. The government argued that the ordinance imposes a duty to postpone an execution when a stay expires, but does not prevent the government from postponing a postponement before the stay expires. The DC Circuit sided with the government and the Supreme Court dismissed Montgomery’s appeal on the matter without appealing from Montgomery.
Montgomery was the first woman to be executed by the federal government since 1953. No other women are currently on federal death row.
Montgomery was also the eleventh person killed by the federal government since last July when the Trump administration ended a 17-year moratorium on federal executions.
The Justice Department has planned two more executions in the last few days of the Trump administration. It plans to execute Corey Johnson on Thursday and Dustin Higgs on Friday, but both men recently tested positive for COVID-19 and a federal judge on Tuesday suspended their executions over the risk of suffering lung damage associated with the virus could cause severe pain during a fatal injection. President-elect Joe Biden is against the death penalty.
James Romoser and Angie Gou, who reverse several lower courts, authorize the execution of Lisa Montgomery,
SCOTUSblog (January 13, 2021, 1:41 am), https://www.scotusblog.com/2021/01/reversing-several-lower-courts-justices-allow-execution-of-lisa-montgomery/