The Trump administration executed Dustin Higgs, 48, early Saturday morning, shortly after the Supreme Court lifted a stay from a lower court.
The government killed Higgs with a lethal injection of pentobarbital, over objections by his lawyers that lung damage from his recent bout of COVID-19 could make the execution extraordinarily painful. They had asked that the execution be delayed until his lungs recovered.
Higgs was pronounced dead at 1:23 a.m. EST at the federal prison in Terre Haute, Indiana.
He was the 13th person executed under President Donald Trump’s unprecedented execution spree, and the third to die during Trump’s final week in office. Lisa Montgomery, who was the only woman on federal death row, was killed on Wednesday morning, and Corey Johnson, who had an intellectual disability and was also recovering from COVID-19, was put to death on Thursday. The final two executions took place after Trump was impeached, for the second time, for inciting violent rioters to storm the U.S. Capitol.
One-third of the justices on the Supreme Court — which has repeatedly overturned decisions by lower courts to halt executions — were appointed by Trump. The decision to allow Higgs’s execution to proceed came down to a 6-3 split, with the liberal justices opposing the move.
Higgs, who is Black, was executed just four days before the inauguration of President-elect Joe Biden, who has said he will work to end the death penalty.
Until the very end of his life, Higgs maintained his innocence.
“Dustin was a fine man, a terrific father, brother, and nephew,” his lawyer Shawn Nolan said in a statement. “Dustin spent decades on death row in solitary confinement helping others around him, while working tirelessly to fight his unjust convictions. In spite of those awful circumstances, he remained true to his family, doing all he could to help raise his amazing children, who have grown up to be wonderful people. This is a true testament to Dustin’s character and to the man he had become.”
“There was no reason to kill him, particularly during the pandemic and when he, himself, was sick with Covid that he contracted because of these irresponsible, super-spreader executions,” Nolan continued. “Rest in peace Dustin. Shame on all of those involved and all of those who have looked the other way.”
Supreme Court Justice Sonia Sotomayor, In a dissent outlining her opposition to allowing Higgs’s execution to go forward, slammed the federal government and the court for rushing through the killings. “This is not justice,” she wrote.
“After waiting almost two decades to resume federal executions, the Government should have proceeded with some measure of restraint to ensure it did so lawfully. When it did not, this Court should have. It has not,” Sotomayor continued.
“Because the Court continues this pattern today, I dissent.”
Higgs was sentenced to death for his role in the 1996 murder of three women in a national park. The government did not claim he physically killed anyone. Another man, Willis Mark Haynes, was sentenced to life in prison for fatally shooting the victims. Higgs was prosecuted on the theory that he ordered Haynes to do the killings. Haynes says he acted of his own accord.
In a clemency petition, Higgs’s lawyers argued that it was “arbitrary and inequitable” to punish Higgs more severely than the man who shot the women.
Tanji Jackson, the sister of one of the victims, said in a statement released after the execution that she felt “mixed emotions” when she learned Higgs was scheduled to die.
In the months leading up to his execution, Higgs’s lawyers filed a flurry of appeals in an attempt to spare his life.
In December, he contracted COVID-19, as the virus swept through the prison complex in Terre Haute, where death row is located. At one point, the penitentiary had more cases of COVID-19 than any other federal prison in the country.
Higgs and Corey Johnson, who was also sick with the coronavirus, sued to stop their executions, arguing that recent lung damage from COVID-19 made it more likely they would feel excruciating pain during the execution.
When individuals are injected with a lethal amount of pentobarbital, it can cause pulmonary edema ― a condition in which fluid enters the lungs while the person is still conscious — inducing a painful sensation similar to suffocating or drowning. Medical experts have warned that receiving an overdose of pentobarbital would likely be even more painful for individuals recovering from COVID-19 because the virus often damages the lungs.
A separate class-action lawsuit filed by two prisoners at Terre Haute — who are not on death row — sought to stop the executions on the grounds that holding such large gatherings at the prison complex risked their lives by potentially exposing them to COVID-19.
The men asked for all executions to be halted until the pandemic was over or until they had been vaccinated. A federal judge ruled that the Bureau of Prisons could continue with the executions as long as staff followed COVID-19 protocols, such as wearing masks. But during Johnson’s execution on Thursday night, witnesses reported that two people working the execution did not wear a mask the entire time they were in the chamber.
On Friday, the two non-death row prisoners asked a judge to stop Higgs’s execution or ban the staffers who had removed their masks from participating, arguing the government had violated the court’s order. In response, the government admitted masks came off but claimed it was briefly so staffers could communicate clearly. The government argued it wasn’t a violation of the court’s order because the order did not explicitly define “mask requirements.”
The judge sided with the government and allowed Higgs’s execution to proceed as planned.
Higgs grew up in a poor neighborhood in Poughkeepsie, New York. His father was largely absent, according to his clemency petition, but when he was around, he was an abusive and violent man.
Higgs’s mother died of breast cancer when he was only 10 years old. His father was in prison at the time. Higgs was deeply traumatized by the abrupt death of his mother, according to family statements, and teachers said he struggled in school and seemed “lost.”
One evening in 1996, when he was 23, he and two friends — Haynes and Victor Gloria — were hanging out with three women inside Higgs’s apartment.
After an argument, the women — Tamika Black, 19, Tanji Jackson, 21, and Mishann Chinn, 23 — left on foot. The men followed in Higgs’s van and picked them up. Higgs drove the van into the Patuxent wildlife refuge. It was there that Haynes shot them.
At Higgs’s trial, the government argued that he ordered Haynes to kill the women. Higgs was found guilty of three counts each of first-degree premeditated murder, first-degree murder committed during a kidnapping, and kidnapping resulting in death, along with firearms charges.
Prosecutors pushed for Higgs to be sentenced to death, despite the fact he did not pull the trigger. “I have to think, ladies and gentlemen, this world would have been a better place without Dustin Higgs,” the prosecutor told the jury. “The hard truth is, ladies and gentlemen, it would be a better world in the future without Dustin Higgs.”
Haynes vehemently disputes that Higgs ordered him to kill the women.
“The prosecution’s theory of our case was bullshit,” he wrote in a 2012 affidavit. “Dustin didn’t threaten me. I was not scared of him. Dustin didn’t make me do anything, that night or ever.” Haynes said he was intoxicated when he shot the women and was not thinking straight.
The government’s case was supported almost exclusively by the testimony of Victor Gloria, the other man present on the night of the killings. Shawn Nolan, one of Higgs’s attorneys, called Gloria an unreliable eyewitness who received a substantial deal in exchange for his cooperation.
“The basis for which Mr. Higgs is on death row has been dismantled. He was not the shooter. He didn’t kill anybody,” Nolan said.
Over half a million people signed a Change.org petition calling to halt his execution.
Higgs leaves behind a son who was born shortly after he was incarcerated.
“From a child to adulthood, my father was always there for me to confide in, to laugh with, to cry with, and even get upset with. But he was always there and has been my number one supporter, showed me what love is, and taught me to be a better man,” Higgs’s son wrote in a letter accompanying Higgs’ clemency petition. “I cannot imagine or think of where I could’ve ended up without the love and encouragement of my father.”