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U.S. Execution Hits Roadblock as Judge Says Can’t Revise Order

Dec. 30, 2020, 5:21 PM

A Maryland federal judge said he can’t direct an upcoming execution to be carried out in the government’s Indiana death chamber, adding a new hurdle to the Trump administration’s plans to execute three inmates before Inauguration Day.

In the Dec. 29 ruling, U.S. District Judge Peter J. Messitte said he lacks authority to revise a final judgment and order against the backdrop of a federal law which requires federal executions to be carried out under the law of the state in which the defendant was sentenced.

Maryland, where a federal jury returned a death sentence against Dustin Higgs in 2000, abolished capital punishment in 2013. That led the government to ask the court to amend its prior judgment and order and direct that Higgs be executed in Indiana, under Indiana law. His execution is set for Jan. 15, five days before the inauguration of Joe Biden, who ran on an anti-death penalty platform.

“Higgs merits little compassion. He received a fair trial and was convicted and sentenced to death by a unanimous jury for a despicable crime,” Messitte wrote. “That said, the Court believes it lacks the authority to do as the Government asks and will deny the Government’s motion.”

The Justice Department, which can appeal to the U.S. Court of Appeals for the Fourth Circuit, didn’t immediately respond to a request for comment.

The federal death chamber is in Terre Haute, where the Trump administration has carried out 10 executions since July, resuming them after a 17-year break. Lame-duck executions haven’t been carried out since the late nineteenth century.

The issue of how to apply the law governing federal executions in instances where the sentence was imposed in a state that abolished capital punishment “has not been teed up this clearly before,” Higgs’ lawyer, Shawn Nolan said. “We believe this order will bar the execution if it stands,” said Nolan, chief of the capital habeas unit for the community defender office for the Eastern District of Pennsylvania.

Higgs, who tested positive for Covid-19 earlier this month, is also challenging his execution in a separate case pending in Washington, arguing his diagnosis should bar his execution on cruel and unusual punishment grounds. He was convicted and sentenced to death for the murder and kidnapping of Tamika Black, Mishann Chinn, and Tanji Jackson. He has pointed to the fact that he wasn’t the shooter and that his co-defendant who pulled the trigger was sentenced to life.

In a footnote to his ruling, Messitte took issue with the timing of the scheduled execution.

“It is not lost on the Court that this execution is scheduled to occur just five days before the inauguration of a new president who has stated his opposition to capital punishment,” Messitte said. “Higgs is set to be the fifth and final federal inmate to be executed in the waning days of the current administration.”

In addition to Higgs, Corey Johnson—who also tested positive for Covid-19 and is litigating that issue in Washington—and Lisa Montgomery—who’s litigating a separate issue on appeal—are both scheduled for execution during Trump’s last full week in office. All three of their cases could wind up before a Supreme Court whose majority has consistently ruled for the government in federal execution cases.

The other two inmates referenced by Messitte appear to be Brandon Bernard and Alfred Bourgeois, who were executed on Dec. 10 and 11. Orlando Hall was the first inmate executed after Election Day, on Nov. 19.

The case is United States v. Higgs, D. Md., No. PJM 98-520, 12/29/20.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at sstern@bloomberglaw.com; Tom P. Taylor at jcrawley@bloomberglaw.com

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