Federal Appeals Court Reverses Block on Lisa Montgomery Execution, Dustin Higgs Execution Hits Snag

One week before the fed­er­al gov­ern­ment intends to put three pris­on­ers to death, two of the sched­uled exe­cu­tions remain in doubt after rul­ings by fed­er­al courts in Washington, D.C. and Baltimore. The sched­uled January 12, 2021 exe­cu­tion of Lisa Montgomery (pic­tured, left) appeared to be back on after the U.S. Court of Appeals for the District of Columbia Circuit reversed a dis­trict court rul­ing that had vacat­ed her exe­cu­tion date. At the same time, the sched­uled January 15, 2021 exe­cu­tion of Dustin Higgs (pic­tured, right) hit a snag when it appeared that the Department of Justice had failed to make arrange­ments to car­ry it out in the prop­er loca­tion and under the prop­er governing law.

On New Years Day 2021, eight days after the U.S. District Court for the District of Columbia had halt­ed Lisa Montgomery’s exe­cu­tion on Christmas eve, a three-judge fed­er­al appeals pan­el rein­stat­ed her exe­cu­tion date sub­ject to review by the full appeals court. The pan­el said that U.S. District Court Judge Randolph Moss erred in his December 24, 2020 rul­ing that the BOP vio­lat­ed fed­er­al exe­cu­tion reg­u­la­tions by resched­ul­ing Montgomery’s exe­cu­tion while a pre-exist­ing stay of exe­cu­tion was still in place. The court delayed its rul­ing from going into effect until the full cir­cuit had an oppor­tu­ni­ty to con­sid­er the case and gave Montgomery’s lawyers one day to sub­mit her request for rehearing.

Meanwhile, a fed­er­al dis­trict judge in Maryland effec­tive­ly halt­ed the Dustin Higgs’ exe­cu­tion from mov­ing for­ward by declin­ing to mod­i­fy the orig­i­nal judg­ment of sen­tence against Higgs. Federal law states that fed­er­al exe­cu­tions are to be car­ried out under the laws of the state in which the death sen­tence is imposed or of anoth­er state des­ig­nat­ed at the time of sen­tenc­ing. Higgs was sen­tenced to death in Maryland in 2001, but the state abol­ished the death penal­ty in 2013 and fed­er­al offi­cials failed to take steps nec­es­sary to amend the sen­tenc­ing order before sched­ul­ing his execution. 

Though Higgs was sen­tenced to death in 2001, fed­er­al pros­e­cu­tors wait­ed until August 2020 to ask U.S. District Court Judge Peter J. Messitte to amend Higgs’ sen­tenc­ing order to direct that he be exe­cut­ed under Indiana law. Without wait­ing for a deci­sion on that motion, the Federal Bureau of Prisons (BOP) then sched­uled his exe­cu­tion to take place at the fed­er­al pen­i­ten­tiary in Terre Haute, Indiana. Judge Messitte wrote ​“the Court believes it lacks the author­i­ty to do as the Government asks and will deny the Government’s motion.” Higgs’ lawyer, Shawn Nolan, said, ​“We believe this order will bar the exe­cu­tion if it stands.”

Judge Moss had issued a stay of Montgomery’s ini­tial December 8 exe­cu­tion date because her attor­neys con­tract­ed COVID-19 as a result of trav­el­ing to vis­it Montgomery and could not com­plete their work on her clemen­cy peti­tion. That stay, issued on November 19, was effec­tive until December 31. However, on November 23, the BOP resched­uled Montgomery’s exe­cu­tion for January 12. 

Federal reg­u­la­tions pro­vide that “[i]f 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.” Another por­tion of the reg­u­la­tions requires the BOP to pro­vide a pris­on­er 20-days notice of the exe­cu­tion date, which would have pushed back the date Montgomery could be exe­cut­ed to at least January 21, 2021, after the inau­gu­ra­tion of President-elect Joe Biden. The District Court found that BOP vio­lat­ed exe­cu­tion reg­u­la­tions by resched­ul­ing the exe­cu­tion before the stay lift­ed. In a one-page rul­ing, the cir­cuit pan­el dis­agreed, say­ing the reg­u­la­tions did not apply because the gov­ern­ment resched­uled Montgomery’s exe­cu­tion on November 23, 2021, before the ​“date des­ig­nat­ed for exe­cu­tion” had passed. Montgomery’s legal team on January 2 filed a peti­tion ask­ing for rehear­ing by the full D.C. Circuit Court. 

Montgomery’s attor­ney, Meaghan VerGow, said in a state­ment, ​“The fed­er­al gov­ern­ment must be required to fol­low the law in set­ting any exe­cu­tion date, as the dis­trict court cor­rect­ly held … Given every­thing we know about Lisa Montgomery’s men­tal ill­ness, her life­time of hor­rif­ic tor­ture and trau­ma, and the many peo­ple in posi­tions of author­i­ty who could have inter­vened to save her but nev­er did, there can be no prin­ci­pled rea­son to car­ry out her exe­cu­tion. The gov­ern­ment should stop its relent­less efforts to end her life.”

The rul­ing in Higgs’ case is unusu­al because he is the first fed­er­al pris­on­er in the mod­ern era who was sen­tenced in a state that abol­ished the death penal­ty between the time of his sen­tenc­ing and the time of his sched­uled exe­cu­tion. Federal pris­on­ers who were sen­tenced to death in states that did not have the death penal­ty were des­ig­nat­ed to be exe­cut­ed under the law of oth­er states, but Higgs’ sen­tence states that he would be exe­cut­ed under Maryland law. Maryland’s sub­se­quent abo­li­tion of cap­i­tal pun­ish­ment would force an amend­ment of the sen­tenc­ing order, which Judge Messitte found he lacks the author­i­ty to issue. 

On December 31, the Department of Justice appealed the dis­trict court’s deci­sion to the U.S. Court of Appeals for the Fourth Circuit.