Trump admin argues the inconvenience of rescheduling executions outweighs the “harm” to prisoners

DOJ is pushing ahead with plans for three executions this week despite COVID concerns and multiple court objections

Published January 12, 2021 8:19PM (EST)

This article originally appeared on ProPublica.

The Trump administration is charging ahead with plans for three back-to-back executions this week, even though two of the condemned prisoners are sick with COVID-19 and multiple courts have objected to the government's aggressive maneuvers.

Despite outstanding legal obstacles in all three cases, the executions remain on the calendar. The three prisoners' fate will ultimately be decided by President Donald Trump and the Supreme Court. Neither has intervened to stop the 10 executions carried out since July.

In their determination to kill Nos. 11, 12 and 13 — capping an unprecedented string of federal executions after a 17-year hiatus — Justice Department officials scheduled executions in defiance of court orders, flouted pandemic safety measures and lied about it, and demanded that judges yield to the administration's self-imposed deadline of Jan. 20.

Their filings don't explicitly acknowledge what everybody knows: They're running out of time to execute people before the inauguration of Joe Biden, who opposes the death penalty.

Instead, their legal rationale for why they cannot wait appears to rest in part on the availability of the private contractors whom the government hired to carry out the executions. Justice Department lawyers argued in court in the past several weeks that the inconvenience of rescheduling these private contractors would "irreparably harm" the government more than the prisoners would be irreparably harmed by dying.

The government has not said who the contractors are or why it hired them. But according to court papers, the contractors have already taken time out of their busy schedules to work this week's executions. The contractors "have made themselves available and presumably have made any necessary arrangements for personal and work-related matters based on the executions scheduled in January," Bureau of Prisons lawyer Rick Winter said in a declaration. The contractors would need at least a month's notice to reschedule, Winter said in another court filing.

Based on the contractors' limited availability, the Justice Department says execution dates "cannot be rescheduled with relative ease." As government lawyers have put it in various court filings, rebooking the contractors would amount to "significant practical burdens," "severe operational burdens," "complex logistical considerations" and "significant, unwarranted logistical challenges."

This, according to the Justice Department, would "inflict irreparable harm on the government." The prisoners, on the other hand, do not face irreparable harm if they lose their last-ditch legal bids to stop or delay their executions, according to the Trump administration. "They cannot show that they will be irreparably harmed," government lawyers wrote in an emergency court filing on New Year's Eve.

The White House, the Justice Department and the Bureau of Prisons did not immediately respond to requests for comment.

The contractors' scheduling constraints help explain why the Justice Department clustered its executions together, two or three at a time, despite concerns from BOP officials. Noting that conducting multiple executions a day was found to be a factor in a 2014 Oklahoma execution that went awry, BOP leaders were worried about the strain on their staff. But according to a deposition, the agency went ahead and scheduled multiple executions in a week because that's what then-Attorney General William P. Barr wanted.

Tuesday: Lisa Montgomery

Tuesday's execution of Lisa Montgomery was scheduled despite a court-ordered halt that was in effect at the time. The court order was meant to give Montgomery more time to work on her case because her lawyers caught COVID-19 while visiting her in prison.

The Trump administration fought back, arguing that she had just as much time as all the other "federal death-row inmates who have been scheduled for execution during this year — all of them during the pandemic."

A federal judge in Washington said the execution date violated the Justice Department's own regulations, but the appeals court disagreed. The court-ordered halt expired on Dec. 31.

Montgomery is the only woman on federal death row and would be the first woman to be executed by the federal government since 1953. Convicted in 2007 of a gruesome murder-kidnapping, Montgomery suffers from severe mental illness and trauma, according to her lawyers. International human rights experts with the United Nations and Organization of American States have said her life should be spared, though their recommendations are not binding on U.S. courts.

The Justice Department has accused Montgomery's legal team of stall tactics. "Montgomery seeks delay for its own sake based on alleged procedural violations that she could have raised many months — if not years — ago," the government lawyers, led by Missouri U.S. attorney Timothy A. Garrison and acting D.C. U.S. attorney Michael R. Sherwin, said in a Wednesday court filing. They even suggested that Montgomery should have raised her complaints before her execution was first announced in October.

That notion stunned Montgomery's lawyers. The government's "suggestion that Mrs. Montgomery should have challenged an execution date before it was set would be laughable if the stakes were not so serious," her lawyers said in response on Thursday. "The fact that this litigation is occurring at all — and now so close to the scheduled execution date — is because [the administration] unlawfully abbreviated the time between notice and a scheduled execution in an unprecedented rush to the execution chamber."

Thursday: Corey Johnson

The government is planning to proceed with executing Corey Johnson and Dustin Higgs this week even though the condemned men both tested positive for COVID-19.

The federal death row facility in Terre Haute, Indiana, has had an outbreak of more than 400 cases after the Nov. 19 execution of Orlando Hall. Each execution brings 50 to 125 people to the facility, including BOP staff, the private contractors, victims' family members, journalists and other witnesses. The warden, T.J. Watson, said in a sworn declaration that the facility followed "rigorous safeguards and precautions," including rapid tests and contact tracing using surveillance footage.

But that assurance, a federal judge would later conclude, "has proven to be wholly false." When six members of Hall's execution team tested positive for the coronavirus, BOP conducted contact tracing for only one of them at most. In response, the government explained that it couldn't do contact tracing without compromising the execution team's "unique mission."

"The identities of execution team members are kept confidential to the greatest extent possible, from inmates, the public, and even from other BOP staff members," government lawyers said in a Jan. 4 filing. "Contact tracing would reveal their identities, or information leading to the disclosure of their identities, so as to threaten their safety and subject them to threats and harassment from inmates, members of the public and others."

In December, Higgs started coughing and having chills, then labored breathing. Johnson developed a cough, headache, runny nose, fatigue and body aches. Both inmates tested positive on Dec. 16. Their conditions continued to worsen, and lawyers cited medical experts who said both men have suffered lung damage.

They argue the lung damage will cause Johnson and Higgs to suffer more painful executions because of how the government's lethal injection drug works. The lawyers presented evidence that the drug, a sedative called pentobarbital, would flood the prisoners' lungs with froth and foam, causing pain and terror akin to death by drowning. The suffering would be even more prolonged, they said, for people with lungs damaged by COVID-19.

The Justice Department hired its own medical experts who argued that Johnson and Higgs wouldn't suffer from the lethal injection because they wouldn't be awake. But even if the drug did simulate death by drowning, the government lawyers argued the pain would be "comparable" to death by hanging. Hanging has not been deemed unconstitutional in repeated Supreme Court reviews, as recently as 2019.

Other prisoners at Terre Haute filed their own lawsuit, arguing that the government's execution plans, without adequate COVID-19 prevention measures, exposed them to an unconstitutional health risk. A federal judge in Indiana, after finding that BOP had "deliberately chosen not to implement CDC guidance," sided with the prisoners.

In this case, the judge said the cost to the government of taking these measures could not outweigh the danger to the prisoners' health: "These additional precautions would not be costless, but any costs to the [government] do not outweigh the risk to the [prisoners] of contracting COVID-19 if executions go forward as scheduled without additional precautions." On Thursday she ordered the executions to stop unless BOP enforced mask wearing, logged all exposures, tested all impacted staff daily for two weeks and conducted contact tracing for anyone who tested positive.

The prisoners asked the judge to insist that BOP explain in advance what steps it will take to comply with the order before proceeding with the executions. "It is important to review [BOP's] actions in advance of any further executions, given [BOP's] prior inconsistent implementation of COVID-19 safety precautions and inaccurate disclosures regarding those precautions," the prisoners' lawyers said in a Sunday filing.

But the Justice Department said it will move ahead with the executions and argued it shouldn't have to spell out its measures for the prisoners. "Now that they have a narrower injunction imposing certain COVID precautions, they should not be permitted to convert it into a court-appointed COVID monitorship," lawyers led by acting Indiana U.S. attorney John C. Childress said in a Monday court filing.

"Nobody needs to carry out any executions during a pandemic," said Robert Dunham, executive director of the Death Penalty Information Center, a nonprofit that tracks executions. "If an execution were lawful, it could be carried out later when it was safe to do so. What we've seen here is purely political."

Separately, Johnson is appealing to stop his execution on the basis that he is intellectually disabled. Johnson was convicted of multiple murders and sentenced to death nine years before the Supreme Court held that executing people with intellectual disabilities is unconstitutional. According to Johnson's lawyers, he could not name the months of the year at age 13, scored an IQ of 69 when he was 16 and has been unable to earn a GED.

In a January 2020 deposition, Associate Deputy Attorney General Brad Weinsheimer said the Justice Department did not consider prisoners' mental health when choosing whom to execute.

Friday: Dustin Higgs

As for Higgs, he was convicted in 2000 in Maryland, which later abolished the death penalty. Since the Federal Death Penalty Act requires the government to follow the law of the state where the prisoner was sentenced, the Justice Department asked the court to reassign Higgs' case to Indiana.

Without waiting for a ruling, the Justice Department scheduled Higgs' execution for Friday. (The announcement incorrectly said that Higgs "murdered three women," when in fact he did not pull the trigger; his co-defendant, who did, was sentenced to life without parole.)

On Dec. 29, the federal court in Maryland denied the Justice Department's request to move Higgs' case to Indiana. The government immediately appealed. The court scheduled a hearing for Jan. 27 — 12 days after Higgs' execution date (and seven after Biden's inauguration).

Rather than reschedule the execution to accommodate the court's timeline, the Justice Department said the court should change its schedule in order to keep the execution date. "In order to meet that deadline," Maryland U.S. attorney Robert K. Hur said, "the Court should either dispense with oral argument or schedule oral argument on Monday, Jan. 11." Hur argued that the Supreme Court frowns on "last-minute stays" — but this was not a case of a prisoner's eleventh-hour claim. It was the government seeking a last-minute emergency order.

Higgs' lawyers were galled by the government's "extraordinary demand."

"The requested rush to decide by an arbitrary date is a situation that the government itself created," they said in a Friday filing. "When the government set Mr. Higgs's execution date, it knew that it had no legal authority to execute him. It acted in the hope that the legal authority would appear before the date that it had selected. That its hope has not yet been fulfilled is no reason for this court to dance to the tune played by the government."

The Justice Department argues that the court lacked the power to refuse its request to reassign Higgs' case to a state that still has the death penalty. While the government acknowledged that it can't execute Higgs without a ruling in its favor, the U.S. attorney's office indicated it will appeal to the Supreme Court if the lower court doesn't agree by Tuesday.

"[Higgs] is just making a 'gotcha' argument, but the loophole he tries to create does not exist," Hur's team said in a Saturday filing. The U.S. attorney's office said allowing the court's decision to stand would amount to "nullification of the executive branch's sovereign authority."

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For more coverage, read ProPublica's previous reporting on the Trump administration.

By Isaac Arnsdorf

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