A federal appeals court late on Wednesday overturned a stay of execution that had been granted for two men on death row scheduled to be put to death this week.
Corey Johnson and Dustin Higgs, who are set to be killed on Thursday and Friday respectively, are both recovering from recent COVID-19 infections.
Their lawyers have argued that the men have lung damage from COVID-19, which will make it more likely they will suffer pain from the government’s execution protocol — a lethal injection of pentobarbital ― violating constitutional protections against cruel and unusual punishment.
On Tuesday, a district court sided with the men, enjoining the executions until March to allow their lungs to heal. The government appealed.
By a 2-1 vote, a panel for the U.S. Court of Appeals for the D.C. Circuit vacated the lower court’s injunction, allowing the executions to proceed on Jan. 14 and 15 as scheduled.
Johnson and Higgs are the last two people scheduled to be killed as part of the Trump administration’s historically unprecedented execution spree. One execution ― that of Lisa Montgomery ― already took place this week. Since the Trump administration restarted federal executions last summer, 11 people have been killed. President-elect Joe Biden has said he will work to end the death penalty.
Lawyers for the two men said they would ask the full court to step in to reinstate the stay.
“The government must stop trying to execute Corey Johnson while he is still recovering from the COVID-19 infection he contracted as a result of the government’s own irresponsibility in carrying out executions during the pandemic,” said Donald Salzman, an attorney for Johnson, in a statement. “There is no principled reason not to wait until the injunction expires in March to assess whether Mr. Johnson’s lungs have healed sufficiently that he will not suffer excruciating pain during an execution.”
Autopsy reports on people who have been executed with pentobarbital show that the drug can cause a condition called flash pulmonary edema, where fluid enters the lungs while the person is still conscious. This can induce a painful sensation similar to suffocating or drowning.
Medical experts who testified in support of Johnson and Higgs surmise that this condition is likely to be more painful for individuals recovering from COVID-19 because the coronavirus causes damage to the lungs.
“For prisoners experiencing COVID-19 lung damage at the time of their execution, flash pulmonary edema will occur even earlier in the execution process, and before brain levels of pentobarbital have peaked,” wrote Gail A. Van Norman, a medical expert consulted by the plaintiffs. “To a reasonable degree of medical certainty, these prisoners will experience sensations of drowning and suffocation sooner than a person without COVID-related lung damage and, therefore, their conscious experience of the symptoms of pulmonary edema will be prolonged.”
Johnson is scheduled to be executed at 6 p.m. on Thursday at the federal prison in Terre Haute, Indiana, where death row is located and the site of a COVID-19 outbreak.
A long day of legal appeals is expected.
The judge who dissented in vacating the stay, D.C. Circuit’s Cornelia Pillard, wrote that the government has failed to show why these final scheduled executions must take place this week.
“All [Dustin Higgs and Corey Johnson] ask is that they not be executed in that manner while suffering from COVID-19. Holding off on their executions until they recover is an alternative course that is both feasible and readily implemented,” she wrote.
“I believe the government has failed to meet the high burden required to second-guess the district court’s factfinding and stay its order,” she added. “Any desire on the part of the government to check two more executions off its list does not justify concluding otherwise.”