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Supreme Court justices Sonia Sotomayor and Stephen Breyer excoriated the Trump administration for carrying out its 13th and final federal execution days before the president’s departure.
Dustin John Higgs died by lethal injection at Federal Correctional Institute in Terre Haute, Indiana on Friday night after his 11th hour pardon appeal was rejected.
Higgs, 48, was convicted of murdering three women at a Maryland wildlife refuge in 1996, even though it was an accomplice who fired the fatal shots. Willis Haynes was convicted of the same crime but sentenced to life.
“It was not justice,” Sotomayor, a person appointed by Barack Obama, wrote in an order issued Friday night.
Sotomayor, who criticized the Trump administration’s announcement in July 2019 that it would resume federal executions after a two-decade hiatus, condemned what she saw as “unprecedented rush” to kill sentenced inmates. All 13 executions have taken place since July 2020.
“To put this in historical context, the federal government will have executed more than three times as many people in the past six months as in the previous six decades,” she wrote.
“There can be no ‘justice on the fly’ in matters of life and death,” Sotomayor added. “Yet the court allowed the United States to execute 13 people in six months under a statutory scheme and regulatory protocol that have been inadequately reviewed, without resolving the serious allegations raised by the condemned.
Breyer, a liberal colleague of the nine-judge high court, was equally scathing, naming each of the 13 executed prisoners and noting a lower court observation that Higgs had significant lung damage. The lethal injection of pentobarbital, Breyer said, “would subject him to a drowning sensation similar to that of waterboarding.”
He said the court must determine whether the execution protocols risk causing extreme pain and unnecessary suffering and pushing courts to make last-minute decisions on life or death.
“What should courts do when faced with legal questions like this?” he wrote. “Are they supposed to ‘hurry, hurry?’
Breyer went further than Sotomayor in questioning the constitutionality of the death penalty, the first member of the current panel to do so. The third liberal justice, Elena Kagan, was also dissenting in the Higgs case but did not give an explanation.
Higgs’ petition for clemency said he had been a model prisoner and a devoted father to a son born after his arrest. He had a traumatic childhood and lost his mother to cancer at the age of 10, he said.
He was convicted in October 2000 by a federal jury in Maryland of the first degree murder and kidnapping in the murders of Tamika Black, 19; Mishann Chinn, 23; and Tanji Jackson, 21. Although Haynes shot the women, Higgs handed him his gun.
“He received a fair trial and was convicted and sentenced to death by a unanimous jury for a heinous crime,” US District Judge Peter Messitte wrote in December.
Arguably, the Trump administration’s most publicized execution took place just days ago, when Lisa Montgomery received a fatal injection in Terre Haute and became the first woman to be killed by the federal government in nearly of seven decades.
His lawyer accused the Trump administration of “unnecessary and vicious use of authoritarian power.”
Many believe officials rushed to complete a series of executions ahead of Joe Biden’s January 20 inauguration. Biden has expressed his desire to see the death penalty abolished at the federal and state levels.
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