Death penalty: As Trump steps down, liberal Supreme Court justices attack unprecedented ‘rush’ of executions

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Late Friday night, following fiery objection from two Supreme Court justices, Dustin John Higgs became the 13th federal inmate to be put to death. It was the last federal execution to take place under the Trump administration, which announced in July 2019 that it was reinstating the federal death penalty after a hiatus of almost two decades. Then-attorney general William Barr said his office owed victims and their families to postpone sentences imposed by the justice system.

But Judge Stephen Breyer – the only sitting judge who believes the court should reconsider the constitutionality of the death penalty – and Judge Sonia Sotomayor lashed out in a late-night order that told the details of it all. executions.

“It’s not fair,” Sotomayor wrote, noting that Higgs was the third federal execution in a week and the 13th overall.

Turning his attention to all executions, Sotomayor wrote: “To put this in historical context, the federal government will have executed more than three times as many people in the past six months than it has in the past six months. six decades prior. “

She said the government should have proceeded with “some measure of restraint” instead of moving with “unprecedented haste” amid questions regarding the Department of Justice’s drug protocol, federal sentencing law. death and other disputes.

She also turned her attention to her fellow Conservatives who she said have “repeatedly bypassed” their usual deliberation processes, allowing the government “to move forward with an unprecedented and dizzying execution schedule.” .

She went through many of the claims presented and how lower court judges had occasionally ruled in favor of detainees to be overturned. She noted in particular that in December inmate Corey Johnson and Higgs, both executed this week, had tested positive for Covid-19.

“There can be no ‘justice on the fly’ in matters of life and death,” Sotomayor wrote. “Yet the court allowed the United States to execute thirteen people in six months under a statutory scheme and regulatory protocol that have been inadequately reviewed, without resolving the serious allegations of the condemned, ”she said.

While saying that she was “respectfully” in dissent, she added: “Those the government executed in this attempt deserved more from this Court.”

As for Breyer, now the oldest liberal in the court, he named each of the detainees. He noted that a lower court judge found that Higgs had significant lung damage and that his execution by injection of pentobarbital “would subject him to a sensation of drowning similar to that of waterboarding” due to his infection with Covid- 19.

Breyer said the court had to answer a myriad of questions, including whether the government’s protocol was likely to cause extreme pain and unnecessary suffering. He said all of the claims presented – many last minute – were not frivolous.

“What should courts do when faced with legal questions like this?” He asked. “Are they supposed to ‘hurry, hurry?” He again called for a review of the constitutionality of the death penalty itself.

Judge Elena Kagan was also in dissent but chose not to join Sotomayor or Breyer or to explain her thinking separately.

On Friday evening, conservative judges chose not to write, although the issue of the death penalty, in general, has sparked heated debate among judges in the past.

In December 2019, the court dismissed a government appeal when a district court judge temporarily barred the federal government from carrying out executions. Judge Samuel Alito, joined by Justices Brett Kavanaugh and Neil Gorsuch, agreed to deny the emergency request, but said he believed the government was “very likely” to eventually win in what Alito called “exceptionally heinous killings”. He urged the appeals court to proceed with “due diligence” to move the case forward.

In his latest appeal to the Supreme Court, Acting Solicitor General Jeff Wall told justices that Higgs received nine death sentences in 2001 “in connection with the cold-blooded murder of three women on federal lands near of the Baltimore-Washington Parkway “. He said that a lower court that had stayed the execution was “unprecedented and untenable” and that the execution should be allowed to continue.

“As this Court has repeatedly pointed out,” Wall wrote, “the government and the victims of crime have an important interest in the expeditious execution of a death sentence.”

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