‘This is Not Justice’ — Federal Execution Spree Ends with Planned Execution of African-American on Martin Luther King Jr’s Birthday

An his­tor­i­cal­ly aber­rant six-month fed­er­al exe­cu­tion spree came to a close after mid­night on January 16, 2021 when an African-American man who was sched­uled to die on the Rev. Dr. Martin Luther King Jr.​’s birth­day was put to death by pri­vate exe­cu­tion­ers hired in a secret no-bid contract.

Dustin John Higgs (pic­tured), who did not kill any­one and pro­fessed his inno­cence pri­or to his exe­cu­tion, was pro­nounced dead at 1:23 a.m. The exe­cu­tion moved for­ward after six jus­tices of the U.S. Supreme Court vacat­ed a stay of exe­cu­tion that would have pro­vid­ed a fed­er­al appeals court in Richmond, Virginia time to con­sid­er issues regard­ing the legal­i­ty of Higgs’ exe­cu­tion date. It was the 17^th stay of exe­cu­tion lift­ed by fed­er­al appeals courts dur­ing the exe­cu­tion spree. A day ear­li­er, a fed­er­al appeals court in Washington, D.C. had lift­ed an injunc­tion pro­hibit­ing Higgs’ exe­cu­tion while he remained infect­ed with COVID-19. ​“This is not jus­tice,” U.S. Supreme Court Justice Sonia Sotomayor wrote in a blis­ter­ing dis­sent from the majority’s unsigned order.

The exe­cu­tion was the 13^th con­duct­ed by the fed­er­al gov­ern­ment over a 186-day peri­od in which no state in the Union exe­cut­ed a sin­gle pris­on­er. The exe­cu­tion spree was unequaled in its size and dura­tion, sur­pass­ing the 12 con­sec­u­tive exe­cu­tions car­ried out over a span of 91 days by Texas between January 10 and April 11, 2007. It marked the most con­sec­u­tive civil­ian exe­cu­tions by any state or the U.S. gov­ern­ment in the 244-year his­to­ry of the United States. No sin­gle gov­ern­ment had been the sole active exe­cu­tion­er in the U.S. over such a long peri­od of time since exe­cu­tions resumed in the 1970s. 

The chil­dren of Martin Luther King Jr. spoke out against the offen­sive­ness of exe­cut­ing a Black man on the leg­endary civ­il rights leader’s birth­day. In a Washington Post op-ed on January 14, King’s old­est son, Martin Luther King III, wrote: ​“In 1957, my father, the Rev. Dr. Martin Luther King Jr., was asked whether God approves of the death penal­ty for cer­tain crimes. He respond­ed, ​‘I do not think that God approves the death penal­ty for any crime.’ He explained that ​‘cap­i­tal pun­ish­ment is against the bet­ter judg­ment of mod­ern crim­i­nol­o­gy and, above all, against the high­est expres­sion of love in the nature of God.’

“My father also rec­og­nized ​‘the sever­i­ty and inequal­i­ty’ of the death penal­ty. He spoke out against the dis­pro­por­tion­ate exe­cu­tion of young Black men, often bare­ly old­er than chil­dren at the time of their crimes, whose pun­ish­ments were sure­ly influ­enced by their skin color.

“Decades lat­er, President Trump and his Justice Department, in their unprece­dent­ed bar­rage of exe­cu­tions, have dis­re­gard­ed all of the prin­ci­ples of human­i­ty, decen­cy and jus­tice that my father preached.”

Noting that the exe­cu­tions of two more Black men remained sched­uled, includ­ing one on his father’s birth­day, King III said, ​“Nothing could dis­hon­or his lega­cy more pro­found­ly than if these exe­cu­tions go forward.”

On Rev. King’s birth­day, his daugh­ter, Bernice King post­ed sev­er­al tweets oppos­ing Higgs’ exe­cu­tion. ​“The Federal Government plans to exe­cute #DustinHiggs today, for a crime some­one else con­fessed to com­mit­ting,” she wrote. Attaching a Baltimore Sun edi­to­r­i­al, Putting Dustin Higgs to death would not be jus­tice, she asked ​“PLEASE RT this today, my father, #MLK’s, birthday.”

Justices Stephen Breyer and Sonia Sotomayor each authored opin­ions dis­sent­ing from the majority’s deci­sion to lift­ing the stay of Higgs’ exe­cu­tion. Justice Elena Kagan sep­a­rate­ly not­ed that she would have vot­ed to leave the stay in place. Breyer not­ed that the major­i­ty had sided with the fed­er­al gov­ern­ment on every appeal and every request to vacate stays of exe­cu­tion over the course of the exe­cu­tion spree. Justice Sotomayor wrote, ​“After wait­ing almost two decades to resume fed­er­al exe­cu­tions, the Government should have pro­ceed­ed with some mea­sure of restraint to ensure it did so law­ful­ly. When it did not, this Court should have. It has not.”

Advocates for women’s rights, vic­tims’ rights, trib­al sov­er­eign­ty, and indi­vid­u­als with men­tal ill­ness or intel­lec­tu­al dis­abil­i­ty also found the exe­cu­tion spree offensive.

On January 13, 2021, the Department of Justice exe­cut­ed Lisa Montgomery, who had been the vic­tim of sex­u­al vio­lence and domes­tic abuse so relent­less it left her riv­en with men­tal­ly ill­ness. DOJ offi­cials announced her exe­cu­tion date on October 16, 2020, dur­ing the mid­dle of National Domestic Violence Awareness Month. 

The DOJ exe­cut­ed Daniel Lewis Lee on July 14, 2020, after false­ly claim­ing that it had select­ed his case to do jus­tice for the vic­tims’ fam­i­lies and because the case involved the death of a child. Lee and co-defen­dant Chevie Kehoe were con­vict­ed in 1999 of killing Nancy Mueller, her hus­band William Mueller, and her 8‑year-old daugh­ter Sarah Powell. However, the evi­dence indi­cat­ed that Kehoe, who received a life sen­tence, had killed the child after Lee refused to do so, and the vic­tims’ fam­i­ly mem­bers opposed Lee’s cap­i­tal pros­e­cu­tion and execution. 

Over the objec­tion of the Navajo nation and Native American lead­ers across the coun­try, the fed­er­al gov­ern­ment exe­cut­ed Navajo cit­i­zen Lezmond Mitchell on August 26, the sole Native-American pris­on­er on fed­er­al death row. Mitchell became the first Native American in U.S. his­to­ry to be exe­cut­ed by the fed­er­al gov­ern­ment for a crime com­mit­ted against a mem­ber of his own tribe on tribal lands.

The gov­ern­ment exe­cut­ed Alfred Bourgeois on December 11 and Corey Johnson on January 14, despite evi­dence that the men were inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty. The fed­er­al gov­ern­ment fought efforts to per­mit courts to con­duct clin­i­cal­ly appro­pri­ate reviews of their claims and both were exe­cut­ed with­out a hearing. 

The exe­cu­tion spree was char­ac­ter­ized by numer­ous devi­a­tions from mod­ern American norms and prac­tices. It included:

• The first exe­cu­tion of a woman by the fed­er­al gov­ern­ment in 67 years;
• The exe­cu­tion of two pris­on­ers accused of mur­ders com­mit­ted in their teens, the two youngest offend­ers exe­cut­ed by the fed­er­al gov­ern­ment in 68 years;
• The first time in U.S. his­to­ry the fed­er­al gov­ern­ment exe­cut­ed a Native American for an offense com­mit­ted against fel­low tribe mem­bers on tribal lands;
• The most fed­er­al civil­ian exe­cu­tions in a sin­gle year since 1896, at a time states were car­ry­ing out the fewest exe­cu­tions in 37 years;
• The most exe­cu­tions dur­ing a pres­i­den­tial tran­si­tion peri­od in the his­to­ry of the United States;
• Scheduling exe­cu­tions dur­ing the mid­dle of the worst pan­dem­ic in more than a cen­tu­ry and flout­ing pub­lic health safe­guards as they were being carried out;
• Executions car­ried out while appeals remained pend­ing or despite court rul­ings that the exe­cu­tion pro­to­col and process were unlaw­ful or unconstitutional;
• Executions of two intel­lec­tu­al­ly dis­abled pris­on­ers, despite no judi­cial con­sid­er­a­tion of their cas­es using clin­i­cal­ly appro­pri­ate stan­dards of review;
• Executions of two men­tal­ly ill pris­on­ers with­out any judi­cial review of their com­pe­ten­cy to be executed;
• Post-mid­night exe­cu­tions of four pris­on­ers after their exe­cu­tion dates had passed, pur­suant to new exe­cu­tions notices of ques­tion­able legal and constitutional validity;
• Leaving one pris­on­er strapped to the gur­ney for four hours while fed­er­al pros­e­cu­tors filed plead­ings to vacate his stay of execution;
• Executing two pris­on­ers who had contracted COVID-19.