A Rush to Execute
On January 15, 2021, five days before Joe Biden became our forty-sixth president, the Supreme Court issued an extraordinary late-night order that cleared the way for the execution of Dustin J. Higgs by lethal injection early the following morning. Higgs, a fortyeight-year-old sentenced to death for his participation in the murder of three women in 1996, was the third person to be put to death by the federal government that week, and the thirteenth to be executed since July, when the Trump administration began what Supreme Court Justice Sonia Sotomayor aptly called an “expedited spree of executions.” In just six months, the Trump administration put to death over three times as many people than the federal government had executed in the previous six decades.
It is difficult to count how many individuals are responsible for the killing spree. Attorney General William Barr made the decision to seek so many executions so quickly. But a number of attorneys general before him had authorized prosecutors to seek the death penalty for all these cases. Over the last several months, numerous Justice Department lawyers pressed courts to rule on life-or-death matters in days or even hours. Congress has not repealed the death penalty, even as two thirds of the world’s nations have abandoned it. And President Trump declined to commute any of the death sentences to life imprisonment and instead exploited the executions during his reelection campaign. From outside the government, so-called experts offered questionable testimony, claiming that the method of execution that the Bureau of Prisons adopted in 2019—lethal injection of pentobarbital—would cause no substantial pain, even though other medical experts deemed more credible by a federal district court described it as death by asphyxiation, like being waterboarded to death. Still-undisclosed private companies contracted with the federal government to conduct the executions—and reportedly insisted on both anonymity and cash payments. But when it comes to an execution, the buck ultimately stops with the United States Supreme Court. The initial decision to impose a death sentence is made not by the nine justices but generally by a jury—although one that is heavily skewed toward the prosecution, because anyone opposed to the death penalty (roughly half the population) is ineligible to serve as a juror in a capital case. The justices must decide that an execution is lawful before a life can be taken, and their review is essential if the death penalty is to have any legitimacy. Reasonable people have long differed about the morality of the state taking a person’s life as punishment. Yet even the most ardent advocates of capital punishment recognize that it must be carried out in accordance with the law. It is the law that, at least in theory, distinguishes a state-sanctioned execution from cold-blooded murder.
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Supreme Court made Dustin Higgs’s death possible by lifting an order “staying” the execution that both the district and appeals courts had agreed was proper. Higgs’s case presented a novel and technical question. US law requires that federal executions comply with the procedures used for state-imposed executions in the state where the federal death sentence was handed down. Higgs was sentenced to death in 2001 in Maryland, but in the meantime, Maryland had abolished the death penalty. The Justice Department asked the district court to designate Indiana, which permits executions, as the state of execution. The court concluded that it lacked the power to do so, because courts generally cannot alter criminal judgments after the fact. The government appealed. The US Court of Appeals for the Fourth Circuit agreed to hear the case on an expedited basis, with oral argument on January 27, 2021, and, sensibly enough, refused to let the execution proceed before it decided on its legality.
At the same time, a district court in the District of Columbia hearing a consolidated case on behalf of multiple death row defendants about the use of pentobarbital as a method of execution also ordered a delay in Higgs’s execution. It did so because of the risk that pentobarbital would cause him an especially excruciating death. Higgs had contracted Covid-19 in the weeks before his execution date and suffered serious lung damage, which would exacerbate the drug’s asphyxiating effects. Like the order in the Maryland case, the D.C. court order did not bar Higgs’s execution; it merely delayed it. But the Justice Department was unwilling to wait. It appealed the D.C. district court ruling and prevailed by a divided vote in the US Court of Appeals for the D.C. Circuit. In the Maryland case, it filed an emergency petition asking the Supreme Court to intervene before the Fourth Circuit Court of Appeals even had a chance to decide the merits—a step the Supreme Court’s own rules say is appropriate only “upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”
What, then, was the “imperative public importance” that justified “deviation from normal appellate practice” and required “immediate determination” in this case? Higgs was convicted in 2001, and the federal government did not set his execution date until late 2020. Why couldn’t his execution have waited a matter of days to afford the court of appeals time to consider the novel legal question his case presented? Why the rush to kill him?
The Supreme Court did not say. In a cursory order that offered no reasoning at all, it simply reversed the lower court decisions and ordered the trial court to designate Indiana as the state whose execution protocols should be