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December 20, 2020

Is there any chance COVID might halt the three pending federal executions slated for next month?

The question in the title of this post is prompted by this AP piece headlined "Lawyers: 2nd US inmate scheduled to be executed has COVID-19."  Here are the details:

A second federal inmate scheduled to be put to death next month in a series of executions by the Trump administration has tested positive for COVID-19, his lawyers said Friday. The diagnosis of Cory Johnson, who was convicted of killing seven people related to his drug trafficking in Virginia, comes a day after attorneys for Dustin John Higgs confirmed he tested positive at a U.S. prison in Terre Haute, Indiana, where both men are on death row.

Johnson, Higgs and a a third inmate, Lisa Montgomery, are scheduled to be put to death by lethal injection at a death chamber at the federal prison complex in Terre Haute just days before President-elect Joe Biden takes office.

Johnson’s lawyers, Donald Salzman and Ronald Tabak, called on federal authorities to strike their client’s current execution date of Jan. 14.  Higgs is scheduled to die a day later. Montgomery’s execution date is Jan. 12, but because she is the only woman on federal death row she is currently held at a separate prison for female inmates in Texas but would need to be brought to Indiana to be executed.

Johnson’s attorneys said his infection would make it difficult to interact with him in the critical days leading up to his scheduled execution, adding that “the widespread outbreak on the federal death row only confirms the reckless disregard for the lives and safety of staff, prisoners, and attorneys alike.” “If the government will not withdraw the execution date, we will ask the courts to intervene,” they said.

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

Prosecutors alleged that Johnson was one of three crack cocaine dealers who carried out a string of murders and that he killed seven people in 1992 in an attempt to expand the territory of a Richmond, Virginia, gang and silence informants. His legal team has argued that he is intellectually disabled, with a far-below average IQ, and therefore ineligible for the death penalty.

Higgs was convicted of ordering the 1996 murders of three women in Maryland. Montgomery was convicted of using a rope to strangle a pregnant woman in 2004 and then using a kitchen knife to cut the baby girl from the womb, authorities said. She would be the first woman executed federally in more than half a century....

The Bureau of Prisons confirmed in a statement to The Associated Press on Thursday that inmates held on federal death row — known as the Special Confinement Unit — have tested positive for COVID-19.  As of Thursday, there were more than 300 inmates with confirmed cases of COVID-19 at FCC Terre Haute.  The Bureau of Prisons said “many of these inmates are asymptomatic or exhibiting mild symptoms.”

Assuming that Higgs and Johnson are asymptomatic or exhibit only mild symptoms in the coming weeks, I greatly doubt that their diagnosis will lead the Trump Administration or courts to decide to postpone their scheduled executions. (In this post a few weeks ago, I wondered if the coming departure of AG Barr might impact somehow federal execution plans.  But, after two more federal executions went forward earlier this month, I somewhat doubt that the incoming Acting AG will be eager to change course absent clear direction from Pez Trump.)

Ironically, if Higgs and/or Johnson were to get seriously ill from COVID and need to be hospitalize for an extended period, such a turn of events might extend their lives.  Despite pending execution dates, it would be unconstitutional for federal prison officials to knowingly refuse to provide needed medical care for Higgs or Johnson.  And if needed medical care kept Higgs and/or Johnson in a hospital facility at the time of their execution dates, I do not think prison officials would be logistically able to carry out the planned executions.  And yet, adding another layer of irony, even if Higgs and/or Johnson were to get very ill and need hospitalization, federal authorities could and likely would work extra hard to nurse them back to health just in time for other federal authorities to move forward their scheduled executions.

December 20, 2020 at 12:57 PM | Permalink

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