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.