Two men on federal death row who are scheduled to be killed next week are asking for their executions to be delayed because of their recent COVID-19 diagnoses. Corey Johnson and Dustin Higgs argue that the government’s lethal injection protocol, which uses the drug pentobarbital, would constitute cruel and unusual punishment given the current state of their health.
Autopsy reports on people who have been executed with a lethal injection of pentobarbital show that the drug often causes a condition called pulmonary edema, where fluid enters the lungs while the person is still conscious. This can induce a painful sensation similar to suffocating or drowning. Several medical experts now warn that this condition is likely to be more painful for individuals recovering from COVID-19 because the coronavirus causes damage to the lungs.
In a teleconference hearing on Tuesday, lawyers for the two men asked U.S. District Judge Tanya Chutkan in Washington, D.C., to delay the executions until their clients have fully recovered from COVID-19. As an alternative, the men have asked either to be given a pre-execution dose of an opioid or other suitable analgesic, which can block the pain, or to be killed by firing squad.
Lawyers for both Johnson and Higgs say their clients have coronavirus-related lung damage, which may make them more likely to experience the effects of pulmonary edema during execution. Johnson and Higgs began experiencing COVID-19 symptoms in mid-December and tested positive for the virus days later.
“Basically, he will be waterboarded to death, he will be drowned,” Shawn Nolan, one of Higgs’ attorneys, said in a phone call on Tuesday. “That’s what the pentobarbital will do to him. It is our position that it violates the Eighth Amendment,” Nolan continued, referring to the constitutional prohibition on cruel and unusual punishment.
The government asserts there is no evidence that Higgs and Johnson will experience pulmonary edema more quickly or severely than inmates who have not been diagnosed with COVID-19, calling the claim “speculative.” But definitively proving that lethal doses of pentobarbital will cause pain to people with COVID-19 is clearly difficult, Gail A. Van Norman, a medical expert consulted by the plaintiffs, said in a Tuesday evidentiary hearing.
“I admit that nobody that I know of in the world has administered massive overdoses of intravenous pentobarbital to COVID-19 patients because it would be unethical to do so,” Van Norman said. “And so asking for a specific scientific study of what would happen with pentobarbital in COVID-19 patients is obviously an oxymoron.”
Johnson is still actively sick with COVID-19, according to Rev. William Breeden, a retired Unitarian Universalist minister who is serving as his spiritual adviser. Breeden, who visited Johnson on Monday, reported that his cough had worsened and that he was intensely fatigued, appearing to fall asleep mid-sentence on multiple occasions, which had never happened during their conversations in the past. Johnson’s medical records show that his pulse oximetry result has dropped to 97%, an indication of lung damage, his lawyers wrote in a court filing. Johnson is scheduled to be killed on Jan. 14.
Higgs, who is set to be executed the next day, also has documented lung damage, according to his lawyers, who presented an X-ray of his injuries to the court on Tuesday. He too continues to experience symptoms. In addition to his COVID-19 diagnosis, Higgs has a cardiac murmur and mitral valve regurgitation, which increases the risk of pulmonary edema. He also has chronic asthma, requiring an inhaler about three times a day.
Flash pulmonary edema occurs “very rapidly (i.e. within seconds or minutes)” in those executed by lethal injection with pentobarbital, Van Norman wrote in a supplemental expert declaration that was cited by Johnson’s lawyers. It is associated with symptoms of drowning and suffocation, including “shortness of breath, air hunger, anxiety, terror and panic,” she wrote.
The experience would be even more painful for an individual who had COVID-19 before being executed, Van Norman wrote — a conclusion supported by several other medical experts who also wrote declarations for the plaintiffs.
“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,” she wrote. “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.”
Lawyers for both Higgs and Johnson say the government is downplaying their clients’ symptoms and the risk that they will experience excruciating pain during execution. Even a mild case of COVID-19 would likely contribute to a painful death under the government’s execution protocol, Van Norman advised.
The federal government has been facing litigation over the legality of its execution process for the past 15 years. In 2005, individuals on death row argued that the three-drug protocol used in executions at the time violated constitutional protections against cruel and unusual punishment. The Supreme Court eventually upheld the legality of that drug combination in a different case — but in 2011, the manufacturer of one of the drugs stopped making it because of pressure from human rights activists.
When the Trump administration resumed federal executions in July of last year — after a 17-year hiatus in the punishment — the government switched to a single-drug protocol of pentobarbital. Since then, the government has executed 10 people and plans to kill three more before the inauguration of President-elect Joe Biden, who says he opposes the death penalty. Lisa Montgomery, the only woman on federal death row, is scheduled to be executed on Jan. 12.
The legality of using pentobarbital in executions is the subject of an ongoing lawsuit. Several of the plaintiffs in that case were executed in 2020 before their court fight had concluded.
“There have been 10 federal executions under circumstances in which it is unclear that any of them are legal,” Robert Dunham, the executive director of the Death Penalty Information Center, said in an interview. “A layperson might say, ‘If you don’t know whether it’s legal, can you go ahead and do it?’ And most people would say, ‘Of course not.’”
The Trump administration’s execution spree has coincided with a spike in COVID-19 cases in and around the federal prison in Terre Haute, Indiana, where the executions take place. The Federal Bureau of Prisons has declined to specify how many of the people on death row have tested positive for the virus. At least nine members of its execution team contracted COVID-19 after recent executions, as did a spiritual adviser who attended an execution.
Nolan, the lawyer who represents Higgs, said the government was taking a cavalier attitude to the possibility that the executions could torture to death the men involved.
“They have an agenda that they have decided they want to move forward with as many executions as possible before Jan. 20 and that’s what they’re doing,” he said. “It’s so irresponsible.”
Judge Chutkan is expected to rule within the next few days.