A Rush to Execute

On January 15, 2021, five days before Joe Biden became our forty-sixth president, the Supreme Court issued an extraordinary late-night order that cleared the way for the execution of Dustin J. Higgs by lethal injection early the following morning. Higgs, a forty-eight-year-old sentenced to death for his participation in the murder of three women in 1996, was the third person to be put to death by the federal government that week, and the thirteenth to be executed since July, when the Trump administration began what Supreme Court Justice Sonia Sotomayor aptly called an “expedited spree of executions.” In just six months, the Trump administration put to death over three times as many people as the federal government had executed in the previous six decades.

It is difficult to count how many individuals are responsible for the killing spree. Attorney General William Barr made the decision to seek so many executions so quickly. But a number of attorneys general before him had authorized prosecutors to seek the death penalty for all these cases. Over the last several months, numerous Justice Department lawyers pressed courts to rule on life-or-death matters in days or even hours. Congress has not repealed the death penalty, even as two thirds of the world’s nations have abandoned it. And President Trump declined to commute any of the death sentences to life imprisonment and instead exploited the executions during his reelection campaign. From outside the government, so-called experts offered questionable testimony, claiming that the method of execution that the Bureau of Prisons adopted in 2019—lethal injection of pentobarbital—would cause no substantial pain, even though other medical experts deemed more credible by a federal district court described it as death by asphyxiation, like being waterboarded to death. Still-undisclosed private companies contracted with the federal government to conduct the executions—and reportedly insisted on both anonymity and cash payments.

But when it comes to an execution, the buck ultimately stops with the United States Supreme Court. The initial decision to impose a death sentence is made not by the nine justices but generally by a jury—although one that is heavily skewed toward the prosecution, because anyone opposed to the death penalty (roughly half the population) is ineligible to serve as a juror in a capital case. The justices must decide that an execution is lawful before a life can be taken, and their review is essential if the death penalty is to have any legitimacy. Reasonable people have long differed about the morality of the state taking a person’s life as punishment. Yet even the most ardent advocates of capital punishment recognize that it must be carried out in accordance with the law. It is the law that, at least in theory, distinguishes a state-sanctioned execution from cold-blooded murder.

The Supreme Court made Dustin Higgs’s death possible by lifting an order “staying” the execution that both the district and appeals courts had agreed was proper. Higgs’s case presented a novel and technical question. US law requires that federal executions comply with the procedures used for state-imposed executions in the state where the federal death sentence was handed down. Higgs was sentenced to death in 2001 in Maryland, but in the meantime, Maryland had abolished the death penalty. The Justice Department asked the district court to designate Indiana, which permits executions, as the state of execution. The court concluded that it lacked the power to do so, because courts generally cannot alter criminal judgments after the fact. The government appealed. The US Court of Appeals for the Fourth Circuit agreed to hear the case on an expedited basis, with oral argument on January 27, 2021, and, sensibly enough, refused to let the execution proceed before it decided on its legality.

At the same time, a district court in the District of Columbia hearing a consolidated case on behalf of multiple death row defendants about the use of pentobarbital as a method of execution also ordered a delay in Higgs’s execution. It did so because of the risk that pentobarbital would cause him an especially excruciating death. Higgs had contracted Covid-19 in the weeks before his execution date and suffered serious lung damage, which would exacerbate the drug’s asphyxiating effects. Like the order in the Maryland case, the D.C. court order did not bar Higgs’s execution; it merely delayed it.

But the Justice Department was unwilling to wait. It appealed the D.C. district court ruling and prevailed by a divided vote in the US Court of Appeals for the D.C. Circuit. In the Maryland case, it filed an emergency petition asking the Supreme Court to intervene before the Fourth Circuit Court of Appeals even had a chance to decide the merits—a step the Supreme Court’s own rules say is appropriate only “upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”

What, then, was the “imperative public importance” that justified “deviation from normal appellate practice” and required “immediate determination” in this case? Higgs was convicted in 2001, and the federal government did not set his execution date until late 2020. Why couldn’t his execution have waited a matter of days to afford the court of appeals time to consider the novel legal question his case presented? Why the rush to kill him?

The Supreme Court did not say. In a cursory order that offered no reasoning at all, it simply reversed the lower court decisions and ordered the trial court to designate Indiana as the state whose execution protocols should be followed. Higgs was executed hours thereafter.

Justices Sotomayor, Elena Kagan, and Stephen Breyer dissented. Breyer and Sotomayor wrote eloquent dissents raising serious questions about the validity of the Court’s ruling. The six justices in the majority—John Roberts, Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—did not bother to offer any defense of their decision.

The resolution of Higgs’s case was no aberration. In all thirteen of the executions carried out since July, the Supreme Court either reversed lower court decisions staying the executions or declined even to review claims that the executions were unlawful. And in virtually every instance, it did so without issuing any explanation for its decisions, notwithstanding carefully reasoned lower court opinions identifying legal questions substantial enough to require resolution before the executions could lawfully proceed. Fourteen separate stays were issued by lower courts; in some cases, defendants obtained multiple stays on distinct legal issues. Yet the Supreme Court eventually allowed all thirteen defendants to be executed, in all but one instance without a word as to why the objections were insufficient. The Supreme Court generally gives no reasons when it simply declines to review a lower court decision. But these cases are about life and death, and in many of them the Court did not merely decline to act, but affirmatively overturned lower court stays—without explanation.

The claims presented by the death row defendants were substantial. Appeals by two of them maintained that they were so mentally incompetent at the time of execution—one had severe dementia—that their executions would violate the constitutional rule that a defendant must be able to understand why he is being put to death. Two others made persuasive cases that the defendants were so intellectually disabled at the time of the offense that they could not be sentenced to death under federal law. Another defendant had discovered evidence in the prosecution’s possession that contradicted its case, which the prosecutors had failed to disclose, in violation of a constitutional obligation to turn over all such exculpatory evidence. And a consolidated case on behalf of most of the defendants challenged the method of execution as a violation of the Constitution, because of its infliction of cruel and unnecessary pain, as well as of federal drug laws, because the pentobarbital was being used without a prescription.

Since July 2020, many lower court judges, appointed by both Republican and Democratic presidents, had issued decisions delaying the executions so that these and other legal questions could be resolved before the condemned could be put to death. They wrote opinions carefully explaining why the questions presented deserved full consideration, and were willing to resolve them on an expedited basis. Yet time and again, the Supreme Court’s conservative majority stepped in to ensure that the executions could proceed without resolution of the legal issues, often deciding the cases in a matter of hours, without hearing arguments and without offering any explanation.

Among those killed was Brandon Bernard, a forty-year-old sentenced to death twenty years ago for a crime he committed in 1999, when he was eighteen. Bernard was involved in a gang carjacking that resulted in the murder of two people, although he did not pull the trigger. At his trial, the prosecutor argued that he should be executed to prevent him, as a gang member, from posing further danger to the public. In fact, the prosecution had expert evidence that Bernard was merely a low-level follower, not a leader of the gang, but it never disclosed that to the defense team, as the Constitution requires. When Bernard’s lawyers discovered it years later in a resentencing of one of his codefendants, the lower courts ruled that it was too late to consider it, even though Bernard could not have brought the claim any earlier.

Bernard led an exemplary life in prison: twenty years without an infraction. By the end of his life, five of the nine surviving jurors who sentenced him to death supported a request for clemency, as did the prosecutor who successfully defended his conviction on appeal. They did so because of the newly discovered evidence, because they believed his trial lawyers were “phoning it in” and just “going through the motions,” because he was only eighteen at the time of the murder and had a lesser part in the crime, and because he showed profound remorse about his actions. Yet the Supreme Court declined to hear the case.

Some of the most disturbing cases involved defendants with serious mental disabilities. Corey Johnson, a fifty-two-year-old who was executed on January 14 for seven murders in Virginia in 1992, had an IQ of 69 when tested as a teenager. He repeated both second and third grades, and could not name the months of the year when he was thirteen. He was sentenced to death before the Supreme Court ruled in 2002 that it is unconstitutional to impose the death penalty on an intellectually disabled person, and before Congress enacted a federal statute to the same effect.

Alfred Bourgeois, a fifty-six-year-old executed in December for killing his two-year-old daughter in 2002, had scores of 67 and 68 adjusted for current IQ diagnostic standards, failed third grade, repeated fourth grade, and was placed in special education classes. At forty-five, his achievement test scores in eleven of thirteen categories remained at the elementary school level. Under current standards, Johnson’s and Bourgeois’s lawyers argued, they were plainly “intellectually disabled.” The Supreme Court let both be executed without deciding the questions they presented.

On January 12, fifty-two-year-old Lisa Montgomery was executed. She was the first woman put to death by the federal government in sixty-eight years. Montgomery had been convicted thirteen years earlier of a gruesome murder in which she strangled a woman who was eight months pregnant, cut the baby out of her body, and sought to pass off the baby as her own. The Supreme Court issued four separate last-minute orders to ensure that her execution could go forward. Three declined to consider, or even to allow lower courts to consider, claims that the execution was procedurally defective in various ways. The fourth set aside her claim that she was mentally incompetent to be executed, even though she had bipolar disorder and intense hallucinations, in part the result of a severely abusive upbringing in which, among other things, she was sexually assaulted weekly by her stepfather for years. Several lower federal court judges ruled that her execution should be delayed to resolve these legal questions. But the Supreme Court, again without offering a single word of explanation, cleared the way for it.

The real reason the administration rushed these executions, of course, was that Trump was leaving office, and Joe Biden, elected on November 3, opposes the death penalty. The last three executions took place during the week between the violent insurrection at the Capitol and Biden’s inauguration. But an administration’s bare desire to execute as many people as possible before the transfer of power is no justification for rushed justice.

What can the Biden administration do about the federal death penalty? At a minimum, it can ensure there are no executions or new death sentences on its watch. No death penalty can be sought or carried out without the attorney general’s authorization, so Merrick Garland, should he be confirmed, will have the power to halt federal executions simply by not authorizing them. But as the recent execution spree illustrates, they will resume if the next president so chooses. On January 22, thirty-seven members of Congress sent a letter to President Biden urging him to commute to life in prison all of the sentences imposed on current federal death row prisoners. (There are forty-nine at present.) There would still be hundreds of prisoners on state death rows, but such a step would nonetheless be a bold act of leadership. And it’s been done before at the state level. In 2003 Illinois governor George Ryan commuted the death sentences of all of that state’s 167 death row inmates. Congress could also repeal the death penalty, as several other national legislatures have done, although it is hard to imagine that happening soon.

That leaves the Supreme Court. The strongest reason for constitutional invalidation of the death penalty is still the one the Court itself offered in 1972 when, in Furman v. Georgia, it ruled that the death penalty as then practiced was “cruel and unusual punishment” in violation of the Eighth Amendment. The Court explained that under existing state rules, whether any particular murderer would be executed was arbitrary, akin to being “struck by lightning.” But in Gregg v. Georgia (1976),the Court revived the death penalty, finding that it could be constitutional if courts held a separate sentencing hearing, found specific “aggravating factors” that narrowed the scope of murders eligible for death, allowed the defendant to present any “mitigating evidence” as to why his or her life should be spared, and required the aggravating and mitigating factors to be weighed on an individual basis.

But as Justice Breyer argued in a forceful 2015 dissent in Glossip v. Gross, the last half-century or so has proved that these procedural requirements are insufficient to make the imposition of the death penalty non-arbitrary. Over that period, there were generally between 15,000 and 25,000 homicides each year. In 2020 there were only seventeen executions nationwide. There is no reason to believe that those seventeen represent the “worst of the worst.” Accidents of geography can be more important than the facts of a crime. Dustin Higgs, for example, was tried in federal court because he and his accomplices drove their victims to a national park in Maryland before killing them. The state of Maryland executed only two people in the last twenty years and abolished the death penalty in 2013. Had Higgs driven to a state park rather than a national park, he would almost certainly be alive today.

Nationwide, only five states executed anyone in 2020. More than half of the entire nation’s death row population were prosecuted in fewer than 2 percent of the nation’s counties. Whether one receives the death sentence is also affected by many other factors that have nothing to do with culpability, including the race or gender of the victim, the politics of the prosecutor, and the skill of the defense lawyer.

The arbitrary character of capital punishment was dramatically evident this past year. As the Death Penalty Information Center reported:

Every prisoner executed in 2020 had one or more significant mental or emotional impairments (mental illness, intellectual disability, brain damage, or chronic trauma) or was under age 21 at the time of the crime for which he was executed. The executed included several prisoners whose more culpable co-defendants received lesser sentences, a prisoner who was denied potentially exculpatory DNA testing, and prisoners whose executions were opposed by victims’ families.

A truly omniscient overseer might be able to winnow down the 20,000 or so murders that occur each year in the US to the twenty or so very worst offenders and condemn only them to death. But judges, jurors, and prosecutors are far from omniscient. In practice, the task is impossible. Our federal and state systems do not even plausibly perform this function. The procedures that the Supreme Court in 1976 concluded might “rationalize” state-sanctioned death have failed. That in itself should suffice to declare capital punishment unconstitutionally arbitrary.

There is little prospect, at the moment, that this Court will do so. But if the government is going to continue to kill people, at a minimum we must be assured that their executions are conducted according to law—which requires, in turn, that those applying the law explain their actions.

Giving reasons for the exercise of force is a fundamental prerequisite for any rule of law. Today’s Supreme Court has failed even that minimal test. During Barr’s execution spree, six justices routinely voted to send defendants to their death without explaining why the law allowed it, even in the face of extensive opinions by district and appeals judges identifying claims strong enough to demand a hearing. As Justice Sotomayor wrote, “this is not justice.” It is death by fiat.

—January 27, 2021