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.