Dustin John Higgs, 48, was put to death at about 1:23 a.m. this morning by lethal injection at the federal prison in Terre Haute, Indiana.
His execution is the 13th that has occurred since the Department of Justice under President Donald Trump and now-retired Attorney General William Barr announced the return of the death chamber and relaunched lethal injection protocols. The first of these executions was of Daniel Lee in July 2020, and all the rest followed over the next six months—a density of executions unheralded in modern American history. Under Trump, the federal government has executed more prisoners than under any president of the past 100 years.
The death of Higgs was one of three executions to take place in the final days of the Trump administration. Earlier in the week, Lisa Montgomery and Corey Johnson were also executed via lethal injection at the federal prison in Terre Haute.
All three inmates had been fighting this ultimate fate and had appeals pending in courts. At points during the week, federal courts had ordered stays to determine mental competency (as in Montgomery's case) or to delay executions because both Johnson and Higgs had gotten infected with COVID-19. In each case, rather than planning for follow-up hearings, the Department of Justice turned to the Supreme Court to have the stays vacated to carry out the executions. In each case, the Supreme Court allowed the executions to proceed, though Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer frequently announced they would have voted to allow the stays.
To be clear, these inmates hadn't exhausted their appeals. Rather, the majority of the Supreme Court justices gave the Department of Justice permission to just ignore the appeals and carry out the executions anyway.
With Higgs, the last of these executions, Sotomayor and Breyer both released written dissents criticizing the federal government's push to march these people to their deaths to the point that several appeal claims will remain unresolved because the prisoners are now dead. In her dissent, Sotomayor notes:
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.
She bluntly follows this with, "This is not justice." Later in the dissent, she observes, "After failing to act since Higgs' sentence was imposed in 2001, the Government gives no compelling reason why it suddenly cannot wait a few weeks while courts give his claim the consideration it deserves. Certainly, there is no 'imperative public importance' behind the Government's request."
The reason for the rush is completely obvious and entirely political. The decision to reinstate executions was a pet project of Trump's Justice Department and Barr. President-elect Joe Biden is now opposed to the use of the death penalty (though he supported it during his "tough on crime" days). If the Justice Department did not execute these prisoners this week, it is very likely they would not have been executed at all.
Ultimately, Sotomayor's dissent concludes:
[T]he Court has allowed the United States to execute thirteen people in six months under a statutory scheme and regulatory protocol that have received inadequate scrutiny, without resolving the serious claims the condemned individuals raised. Those whom the Government executed during this endeavor deserved more from this Court.
Meanwhile, as the federal government rushed to execute these prisoners, Mississippi actually dismissed the murder charges of a man this week. Eddie Lee Howard, who had spent more than 25 years on death row and was convicted partly on bite-mark analysis science whose validity is now questionable, is now exonerated. More than two dozen people's murder convictions have been overturned due to the disreputability of this forensics technique.
Nobody has argued that the 13 people the federal government has executed since July were completely innocent, though it's worth noting that Higgs didn't actually kill anybody. He was convicted for allegedly ordering the execution of three women and accused of being the ringleader of the operation. The man who actually shot the women was sentenced to life in prison. Higgs claimed he was set up as the fall guy for the crime. In his last words, he insisted on his innocence and said that he did not order the women's executions.
So many people having been found innocent and released from death row should be seen as an inherent indictment of the practice as a form of justice and an example of the dangers of granting the government power over life and death. If the Mississippi courts had shut down the efforts of Howard's lawyers the way the Supreme Court snubbed lawyers for Higgs, Montgomery, and Johnson, the man would have been executed, not exonerated.
What's so enraging about these executions is not that good people were put to death. Their actions collectively resulted in many deaths, some of them very brutal. What's enraging, as Sotomayor notes, is that once Justice Department officials decided they wanted to execute these people, absolutely no argument or claim, even when upheld by federal courts, stopped them from proceeding.
They didn't stop even as COVID-19 infected prison staff, prisoners, and the prisoners' attorneys and spiritual advisers. They didn't stop even as experts made clear that Montgomery was so mentally detached that she likely didn't know what was happening to her (when asked if she had any final words, she simply said "no"). They didn't stop when relatives of the victims of Daniel Davis Lee insisted they didn't want the government to execute him. They didn't stop when former jurors and prosecutors came forward and said they regretted sentencing Brandon Bernard to death and pleaded with the Trump administration for mercy.
And it will be a footnote, if anything at all, in the history books given everything else that has come of Trump's administration.