District Court Voids Lisa Montgomery Execution Date; Federal Prosecutors Appeal

Saying the Federal Bureau of Prisons (BOP) acted unlawfully in resetting Lisa Montgomery’s execution for January 12, 2021, a federal judge in Washington has for a second time blocked efforts by the U.S. Department of Justice to put to death the only woman on federal death row. In an order issued late in the day on December 24, 2020, U.S. District Court Judge Randolph D. Moss agreed with Montgomery’s lawyers that the BOP lacked legal authority to reschedule Montgomery’s execution while a pre-existing stay of execution is still in place, and the court voided the BOP’s execution order.

The Department of Justice has appealed the district court’s order to the U.S. Court of Appeals for the District of Columbia Circuit and has asked the district court to vacate and stay the order pending the outcome of that appeal.

The BOP initially scheduled Montgomery’s execution for December 8, 2020. However, on November 19, 2020, the district court granted Montgomery (pictured) a temporary stay of execution until December 31 after her two lead counsel contracted COVID-19 during the course of preparing her clemency application. Federal prosecutors did not appeal the stay. Instead, the BOP on November 23 rescheduled Montgomery’s execution for January 12 while prosecutors sought an order from the district court to compel other lawyers to assume responsibility for Montgomery’s case.

Montgomery’s lawyers moved to prevent federal officials from carrying out the execution, arguing that BOP had violated several different provisions of federal law. First, Montgomery’s counsel argued that the district court’s stay order had “temporarily suspend[ed]” BOP’s authority to undertake any steps towards her execution while the stay remained in effect. Second, they asserted that the issuance of a new execution date violated the plain language of federal execution regulations, which provide: “If the date designated for execution passes by reason of a stay of execution, then a new date shall be designated promptly by the Director of the Federal Bureau of Prisons when the stay is lifted.” And, thirdly, they argued that the new execution date violated provisions of the Federal Death Penalty Act that require BOP to follow the execution procedures of the state in which the murder occurred. The law in Missouri — where the murder occurred — requires that prisoners be provided 90-days notice of an execution date and prohibits the scheduling of more than one execution per month. The BOP had already scheduled two other executions for the same week as Montgomery’s execution.

The district court ruled that the BOP’s order rescheduling the execution violated the execution regulations. It held that Montgomery had not been executed on the initial date scheduled only because a stay of execution was in place, and that, therefore, a new execution date may not be scheduled until after December 31, once the stay lifted. The court reserved judgment on the other issues, which it said were unnecessary to address at this time.

The federal execution regulations also require that the BOP provide a prisoner at least 20 days advance notice of her execution. If a new execution date cannot be set until January 1 and those provisions govern, the earliest date the execution could be rescheduled would be January 21, 2021, the day after Joseph Biden is inaugurated as president. Biden said during the presidential campaign that he opposes capital punishment and would work to end the federal death penalty.

The court, however, did not address when a rescheduled execution might occur. “[I]t is premature for the Court to decide whether the FDPA and Missouri law require that the [BOP] Director schedule a new execution date to occur at least 90 days after he acts. Until the Director sets a new date, this question is purely hypothetical,” Judge Moss wrote. “The question, moreover, is not an easy one, and would be better answered with more time than allowed by the very expedited schedule that the parties and the Court now face,” the court said.

The ruling is the latest twist in federal prosecutors’ efforts to execute Montgomery, who would be the first woman executed by the federal government since 1953. On May 26, 2020, the U.S. Supreme Court declined to review Montgomery’s claim that the trial court had improperly removed a key member of her defense team from the case without notifying her or the lawyer or providing either an opportunity to object to the ruling. The Supreme Court denied Montgomery’s motion for reconsideration on August 3, ending the normal course of appeals in her case.

Just two months later, the Department of Justice announced on October 16, 2020 that it intended to execute Montgomery on December 8. The notice marked the shortest time between the completion of appeals and a scheduled federal execution in the modern history of the federal death penalty, and the compressed period from the date of the notice of execution to the execution date itself artificially limited the time Montgomery’s counsel had to investigate and prepare her petition for clemency.

The short time frame forced Montgomery’s lawyers, against medical guidance, to travel from Tennessee to Texas to meet with Montgomery, who they said is severely mentally ill and emotionally fragile. During the course of those visits, they contracted serious cases of COVID-19, leading to the stay of execution. Corey Johnson and Dustin Higgs, who are scheduled to be executed on January 14 and 15, 2021, both have tested positive for COVID-19, leading their lawyers to request postponements of their executions.