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Constitutional Law

Dustin Higgs’ Execution Was Wrong and What Sotomayor Had to Say About it is Right.

The Supreme Court allowed the execution of  Dustin Higgs late Friday, making Higgs the thirteenth person to be killed by the federal government since July. Since July. And after seventeen years without a single federal execution.

Higgs’ execution was a miscarriage of justice for a number of issues. First of all, he was suffering from covid-19 and several doctors said that injecting him with he drugs that would kill him would be the equivalent of filling his lungs up with water as if he was being waterboarded. Also, the lower court disagreed with the procedure of moving the venue of his case from Maryland (with no death penalty) to Indiana (which has the death penalty). The Federal Appeals Court issued a stay to allow his lawyers to fully address these legal arguments.

Here is a summary of the issue in Higgs case: In 2001, the United States District Court for the District of Maryland sentenced Higgs to death for his involvement in the kidnapping and killing of three people. The Federal Death Penalty Act requires that a federal death sentence be “implement[ed]” “in the manner prescribed by the law of the State in which the sentence is imposed.” If that State does not allow the death penalty, the FDPA directs courts to designate an alternate State that does. Executions were legal in Maryland in 2001, so the District Court’s Judgment and Order did not designate an alternate State. Maryland has since abolished the death penalty, however, so the Government cannot implement the death sentence in accordance with Maryland law
as the FDPA requires.

In August 2020, the Government asked the District Court to amend its Judgment and Order to designate Indiana, where Higgs and all other federal death-row prisoners are imprisoned, as the alternate State. Consistent with its current practice, the Government set an execution date before the District Court could even rule on the legality of doing so. The District Court denied the Government’s motion, holding that the court had no authority to modify its original judgment. (“The Government’s initial, extraordinary request that the Court amend its original judgment and sentence is something that the Court plainly cannot do”). The Government appealed to the Court of Appeals for the Fourth Circuit, which scheduled oral argument for January 27, 2021, and granted a stay of execution.

Unwilling to wait, the Government asked SCOTUS to grant certiorari and summarily reverse the District Court without normal briefing or argument, and direct the District Court to designate Indiana as the Government requested. Incredibly, by a vote of 6-3 SCOTUS granted the writ and reversed the stay authorizing the execution to go forward.
So Higgs was killed with a Federal court ruling in his favor saying the death penalty was inapplicable to his case and with the Federal Circuit Court of Appeals issuing a stay (indicating that his claim had merit) with an argument date set for two weeks from now. None of the six justices (you know who they are) explained the mad rush to kill Higgs after he sat on death row for twenty years and after there had not been a Federal execution in seventeen years.

Justice Kagan issued no opinion just saying she would have denied the writ and Justice Breyer wrote a short opinion saying that there were viable legal issues that should have been addressed, saying “It is rare for us to consider
a question before the Circuit has decided it. And I would not depart from ordinary practice here.”
Rare is a massive understatement.

Official Portrait of Justice Sonia Sotomayor

Sotomayor, who seems to realize her role as carrying the entire liberal wing on her back and so issued, in the spirit of a classic Ginsburg dissent, a scathing opinion that did not pull punches. She starts by listing the twelve people previously executed since July in a hat tip to the BLM Movement command to “Say Their Names”:

After seventeen years without a single federal execution, the Government has executed twelve people since July. They are Daniel Lee, Wesley Purkey, Dustin Honken, Lezmond Mitchell, Keith Nelson, William LeCroy Jr.,
Christopher Vialva, Orlando Hall, Brandon Bernard, Alfred Bourgeois, Lisa Montgomery, and, just last night, Corey Johnson. Today, Dustin Higgs will become the thirteenth. To put that in historical context, the Federal Government will have executed more than three times as many people
in the last six months than it had in the previous six decades.

She outlines the many legal issues most of these defendants had that were not decided before they were killed by the Government. Lisa Montgomery, for example, the first woman executed by the Government in 67 years, had raised both procedural issues and her mental incapacity (her lawyer described her as “delusional”). The DC Circuit Court agreed that her arguments had merit and scheduled a hearing. The Government went to SCOTUS which vacated the stay and Montgomery was killed four days later. Sotomayor painstakingly does the same analysis for each of the other recently killed Federal inmates.

Should our Government be killing people before their legal issues are addressed? Of course not, as any high school civics student could tell you.

Here’s how she put it:

Throughout this expedited spree of executions, this Court has consistently rejected inmates’ credible claims for relief. The Court has even intervened to lift stays of execution that lower courts put in place, thereby ensuring those prisoners’ challenges would never receive a meaningful airing. The
Court made these weighty decisions in response to emergency applications, with little opportunity for proper briefing and consideration, often in just a few short days or even hours. Very few of these decisions offered any public explanation for their rationale.

This is not justice.

We have rules and procedures in place to make sure that when the Government kills someone, it dos so in accordance with State and Federal law. I know, I hear death penalty advocates saying that these defendants don’t deserve all this concern because they never showed any such concern for the rights of their victims. So to that I first quote JRR Tolkien “Many that live deserve death. But many that die deserve life. Can you give it to them? Then do not be so swift to meet out death in judgment for even the very wise cannot see all ends.” Secondly, each of these people had valid legal issues that courts had decided merited a hearing. Killing them before the issue went through all the legal routes is a violation of their due process.

Incoming President Joe Biden will likely not enforce the FDPA. His predecessor and his most recent Attorney General have already left various stains on the Constitution, but this murderous and illegal spree should not be forgotten amid all the madness.

Follow me on twitter @oscarmichelen

Email me at omichelen@cuomollc.com

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