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.