Supreme Court Vacates Stays of Execution, Paves Way for Late-Night Execution of Lisa Montgomery

After a series of rulings by the United States Supreme Court summarily vacated two stays of execution and denied attempts to reinstate two others, the federal government executed death row prisoner Lisa Montgomery (pictured) on January 13, 2021. Montgomery, the only woman on federal death row, was the first woman executed by the federal government in more than 67 years, the first person executed in the U.S. in 2021, and the 11^th prisoner put to death in a six-month federal execution spree without parallel in the 20^th or 21^st centuries.

Montgomery was executed at the Terre Haute Correctional Complex in the early hours of Wednesday morning after several courts had put her execution on hold. The execution notice scheduling her execution for January 12 expired at midnight and the Federal Bureau of Prisons (BOP) issued a new notice after midnight scheduling her execution for the same day. Montgomery was pronounced dead at 1:31 a.m. Eastern Standard Time after receiving a lethal injection of the barbiturate pentobarbital.

Montgomery had been granted stays of execution from four separate courts across the country in response to questions about her mental competency to be executed and whether the federal government had violated regulations, court orders, and statutes in setting Montgomery’s execution date. Ultimately, without addressing the merits of the issues she raised, the U.S. Supreme Court paved the way for Montgomery’s execution to go forward.

Several courts found that Montgomery had made strong arguments that the federal government had unlawfully set her execution date. Federal authorities had initially scheduled her execution for December 8, 2020. But on November 18, a federal district court issued a temporary stay after her two lead lawyers contracted COVID-19, and postponed her execution until December 31. On November 23, while that stay of execution was still in effect, the BOP reset her execution date for January 12, 2021, setting off a frenzy of litigation in courts across the country.

The Four Stays of Execution

On December 24, a federal district court judge in Washington, D.C. voided the BOP’s execution order, ruling that rescheduling Montgomery’s execution while a pre-existing stay of execution was still in place violated federal execution regulations. The U.S. Court of Appeals for the District of Columbia Circuit reversed the district court order and vacated that stay on January 1. Ten days later, after a 5-4 vote of the judges of the D.C. Circuit, with two judges not participating, the court issued a different stay of execution, delaying Montgomery’s execution until it could consider her argument that the short time frame between the announcement of her rescheduled execution and the execution date itself violated the notice requirements of the Federal Death Penalty Act.

Montgomery also filed pleadings in federal district court in Missouri — where she was tried —arguing that the BOP’s execution notice violated the trial court’s initial sentencing order, which had set guidelines for scheduling an execution date and stayed her execution pending further order by the court. On January 12, the U.S. Court of Appeals for the Eighth Circuit granted Montgomery a stay of execution so that it could consider her argument that the government’s disregard for the trial court’s sentencing order invalidated her execution date.

Montgomery received a fourth stay of execution from a federal court in Indiana, where she was scheduled to be executed, so she could present mental health evidence that she had lost touch with reality and was no longer mentally competent to be executed. In court filings, Montgomery’s lawyers stated that Montgomery’s “deteriorating mental condition results in her inability rationally to understand she will be executed, why she will be executed, or even where she is. Under such circumstances, her execution would violate the Eighth Amendment.”

Montgomery had suffered from serious mental illness for much of her life, and had been diagnosed with numerous mental conditions, including bipolar disorder and psychosis. Brain scans also identified brain damage that was likely attributable to the severe sexual abuse she had endured as a child. Her lawyers documented a steep decline in her mental health and functioning brought about by the stress and conditions of confinement attendant to her impending execution. They supported their observations with sworn declarations from experts who had previously evaluated Montgomery but had been unable to evaluate her current condition because of the coronavirus pandemic.

On January 12, the day of her scheduled execution, the district court granted a stay of execution on Montgomery’s competency claim. However, a panel of the U.S. Court of Appeals for the Seventh Circuit reversed the lower court’s ruling. Montgomery’s lawyers asked the U.S. Supreme Court to stay her execution until her competency claim could be resolved, but the Court, without opinion, denied her stay application. Near midnight, and hours after Montgomery’s execution was scheduled to take place, the Court vacated the stays issued by the Eighth Circuit and D.C. Circuit federal appeals courts, also without opinion.

After the execution, Montgomery’s lead counsel Kelley Henry issued a statement that “[t]he craven bloodlust of a failed administration was on full display tonight. Everyone who participated in the execution of Lisa Montgomery should feel shame,” she said. Sandra Babcock, co-counsel for Montgomery and the faculty director and founder of the Cornell Center on the Death Penalty Worldwide, expressed dismay at the actions of federal prosecutors and the Supreme Court. “Nearly a dozen judges appointed by Democrats and Republicans in four separate courts entered stays of execution for [Lisa] Montgomery,” she said. “The Government killed her anyway.”

Two more death row prisoners are scheduled for execution this week. Corey Johnson and Dustin Higgs both contracted COVID-19 as a result of the BOP’s failure to adopt precautionary health measures during the executions at the Terre Haute facility. The federal district court judge in Washington, D.C. who has been hearing the federal prisoners’ challenges to the federal execution process issued an order staying their executions based on evidence that their compromised lung conditions caused by their COVID-19 infections make them likely to suffer excruciating pain during an execution by lethal injection.

Higgs’ execution is also being blocked by a Maryland district court’s ruling that it lacked the authority to amend Higgs sentencing order, which required him to be executed in compliance with Maryland law. Maryland has since abolished the death penalty. The U.S. Court of Appeals for the Fourth Circuit has declined to rule on the government’s appeal of that decision until it receives full briefing and argument on the novel legal issue presented by the case. Although it has issued an expedited briefing schedule, it would not be able to decide the case until after the scheduled execution date and after a new president is inaugurated. Federal prosecutors are currently asking the U.S. Supreme Court to intervene.