Since President Donald Trump incited violent rioters to storm the U.S. Capitol last week, lawmakers and members of his own Cabinet have mulled whether he’s too dangerous to complete the final days of his presidency. Twitter, Facebook and Snapchat have decided he’s currently unfit to operate social media accounts on their platform.
But he still has the power to kill.
During his last full week as president, the Trump administration plans to execute three people on death row, capping a historically unprecedented six-month execution spree. The people scheduled for execution — just days before the inauguration of a president who opposes the death penalty — include a woman with a mental illness untreated at the time of her crime, a man with an intellectual disability that should render him ineligible for execution, and a man who did not pull the trigger in the killing he was convicted of.
Trump’s executions, which began this past summer and are scheduled to culminate on Jan. 15, have coincided with a pandemic that has reached directly into the prison in Terre Haute, Indiana, where federal death row is located. At one point in December, the prison had at least 410 incarcerated people infected with COVID-19, more than any other Bureau of Prisons facility in the country.
After members of BOP’s execution team fell ill with COVID-19, the government failed to conduct thorough contact tracing in an effort to keep the identities of those involved in the killings secret.
Corey Johnson and Dustin Higgs, scheduled to be killed on Thursday and Friday, respectively, were diagnosed with COVID-19 last month and are still experiencing symptoms. The lung damage from their illness is likely to make their deaths by lethal injection even more painful, according to medical experts. “Basically, he will be waterboarded to death, he will be drowned,” said Shawn Nolan, one of Higgs’ attorneys.
Autopsy reports show that the government’s execution protocol, a lethal injection of pentobarbital, may torture as it kills — even in healthy individuals. When used in executions, the drug often causes a condition called pulmonary edema, where fluid enters the lungs while the person is still conscious, creating a painful sensation similar to suffocating or drowning.
There is ongoing litigation over the constitutionality of the process, given the apparent cruel and unusual punishment it would inflict. Several of the plaintiffs were executed before seeing the result of their legal fight. Some medical experts now warn individuals with COVID-19 who are injected with a lethal dose of pentobarbital will likely experience pulmonary edema faster, resulting in more conscious pain and suffering.
The outbreak at Terre Haute has also put family and loved ones of those facing execution — and the families of their victims — in an impossible situation: To bear witness to the killing, they must risk contracting a potentially fatal disease.
The man who administered last rites to death row prisoner Orlando Hall came down with COVID-19 following the November execution. Others, including the lead attorneys for Lisa Montgomery, scheduled to be killed on Tuesday, contracted COVID-19 during legal work for her case.
Beyond the risk of infection, executing people during a pandemic also limits access to effective counsel for the individuals on death row. Travel restrictions hinder lawyers’ ability to interview sources for clemency petitions and coronavirus-related lockdowns at the prison complicate lawyers’ access to their clients.
Here are the stories of those condemned to die.
A ‘Broken’ Woman
Lisa Montgomery, 52, the only woman on federal death row, is scheduled to be executed on Tuesday. Her lawyers say that she should be spared the death penalty, citing her severe mental illness and history of extreme childhood trauma that contributed to the breakdown in her mental health.
She was born into a home of poverty, domestic violence, neglect and sexual abuse. Her mother, who drank while she was pregnant with Montgomery, lacked the necessary skills to care for her children, beating them and denying them basic care. Montgomery’s first words, according to one account, were “Don’t spank me. It hurts.”
After Montgomery’s father left, her mother remarried Jack Kleiner, a violent man who terrorized the children in the home. When Montgomery was 11, he began molesting her, according to family statements. He built a special room onto a trailer on an isolated tract of land in Oklahoma where he would rape Montgomery. Later, her parents trafficked her out to other men, telling the teen that she had to pay for her room and board. The men raped, sodomized and even urinated on her, she told a cousin at the time.
Montgomery began to disconnect from reality in response to the abuse. Mental health experts who have examined her believe that she developed an extreme dissociative disorder as a way of coping with the sexual and physical violence that was a mainstay of her childhood.
She grew into adulthood with a “disconnected sense of her emotions, a tenuous hold on reality, a completely warped view of human relationships, and a split and damaged sense of herself and of her body,” concluded Katherine Porterfield, a clinical psychologist at the Bellevue/New York University Program for Survivors of Torture who evaluated Montgomery in prison and provided expert testimony for the defense.
As an adult, Montgomery’s life mimicked that of her childhood. She lived in poverty and was unable to care for the four children she had in the course of four years. Her mental health deteriorated. “Lisa was so out of touch that she often did not respond to her own name,” her lawyers wrote in her clemency petition. “She mistook ammonia for vinegar while cooking. Her home was filthy. She could not dress her children or help them with their hair.”
Still, being a mother was a key part of her identity, and her delusions manifested there. Even after she had undergone a sterilization procedure, she pretended to be pregnant on multiple occasions.
In 2004, Montgomery, then 36, drove from her home in Kansas to Missouri to meet up with Bobbie Jo Stinnett, 23, who was eight months pregnant. Then she did the unthinkable. Montgomery strangled Stinnett and cut open her abdomen, removing the fetus. She then transported the baby home, telling her husband she’d given birth at a clinic. The next day, the police arrested Montgomery. The baby, who was physically uninjured, was returned to her father. Montgomery confessed and was sentenced to death.
“Mrs. Montgomery was psychotic at the time of the crime,” one of her lawyers, Amy Harwell said. “She has always accepted responsibility. This is someone who was deeply remorseful, once she became appropriately medicated and had full contact with reality, although that is a situation that waxes and wanes.”
Montgomery is diagnosed with bipolar disorder with psychotic features and complex post-traumatic stress disorder. She has been under constant psychiatric care since her arrest and takes antipsychotic medications.
She was initially scheduled to be executed on Dec. 8, but her two lead attorneys — Harwell and Kelley Henry — both got sick with COVID-19 following visits with Montgomery in prison. A district court delayed her execution and gave her lawyers more time to finish her clemency petition.
Henry, who has been working on Montgomery’s case since 2012, said she was frustrated and angry that her client was scheduled to be killed during the pandemic, since it has hampered efforts to save her life.
“When I have had clients executed, I could always say I know I did everything I possibly could,” she said in an interview. “I know I’m doing everything I possibly can for Lisa under these circumstances, but if the circumstances were different … I don’t know what it would be.”
The pandemic has also impeded Montgomery’s family’s visits. Diane Mattingly, Montgomery’s sister, said that prison officials canceled her last scheduled visit with her sibling because of a COVID-19 outbreak. She is afraid she will never see her again.
“She’s lived a tortured life and she has been broken,” Mattingly said. “I understand she needs to stay in prison the rest of her life, I do. But the death penalty? It doesn’t feel like justice. So many people let her down. I’m just begging that somebody will stand up for her for once.”
‘I Knew He’d Never Make It On His Own’
Corey Johnson, 52, is scheduled to be executed on Thursday, despite a Supreme Court ruling that executing people with intellectual disabilities like his violates Eighth Amendment protections against cruel and unusual punishment.
Johnson’s lawyers are fighting his execution, citing evidence of intellectual disability and evidence that lung damage from his recent COVID-19 diagnosis will make death by lethal injection a painful experience akin to drowning.
When he was tested in his early 20s, Johnson’s reading and writing abilities were at a second-grade level. As a teenager, he could not prepare snacks for himself or make purchases and check to ensure he received the correct change. At the age of 16, an aide at his school would accompany him to the bathroom to prevent him from getting lost or distracted on the way back to his classroom. Yet Johnson has never had a meaningful opportunity to present evidence of his disability — and, therefore, his ineligibility for the death sentence — in court.
Johnson was born to a 17-year-old mother who struggled with drug addiction and a father who was imprisoned for most of his childhood. He grew up in New York City in poverty and moved often. He attended 10 different schools before he was 13.
Because he switched schools so often, Johnson’s records often didn’t follow him, making it difficult to diagnose his intellectual disability. Moreover, because Black students had been overly classified as intellectually disabled, educators and health experts may have been reluctant to apply the label to Johnson, Daniel J. Reschly, an intellectual disability expert, wrote in an evaluation of Johnson.
Johnson’s mom dated men who were violent and abusive to her and her kids; one tried to set fire to her apartment. When Johnson struggled in school, his mom would beat and insult him. She surrendered him to social services when he was 13 and he was placed in a residential facility.
Richard Benedict, one of Johnson’s special education teachers at the facility, described him as “a likable kid” who needed a high level of structure and support to survive. “I knew he’d never make it on his own,” Benedict said in an interview. Johnson was self-conscious about being “stupid,” as he put it to Benedict. He wanted to be liked and could be talked into things that would get him in trouble in his pursuit of acceptance.
When he was 16, Johnson was transferred to a group home with less structure to prepare him to eventually live on his own. Odette Noble, a social worker who knew Johnson at the time, described him in a 2011 affidavit as “a very sweet kid” who “was not capable of ‘consequential’ thinking.”
The following year, another resident in the group home talked Johnson into helping him steal a paycheck from another teen. Johnson was sentenced to 20 days at Rikers Island as a youth offender.
After Rikers, Johnson was frustrated by his lack of progress in school and struggled to follow the group home’s rules. In 1987, when he was 18, staff told him to go to his mother’s home for 10 days to consider how to improve his attitude. But he never returned.
With little family support or ability to get work, Johnson eventually joined a group of guys he knew selling drugs in New Jersey. The group recognized Johnson’s limitations but knew he was loyal and would do what he was told, group leaders later said in affidavits.
After police raided the group’s New Jersey home, several members moved to Richmond, Virginia, and became involved in violent territorial disputes with other dealers.
Johnson was convicted of murdering seven people and injuring three others in five different incidents. The victims included rival drug dealers, a person who owed a drug debt to the group, a person who had a personal dispute with a group member, a person the group believed to be a police informant, and bystanders.
“Corey was a follower. Corey would go along with anything anyone in the family — our group — would say,” Darold Brown, a member of the New Jersey group, said in a 2011 affidavit. “If, hypothetically, you would say to Corey, ‘let’s rob a bank,’ Corey would be there with you. He wouldn’t analyze whether it was a good idea. Corey’s view was that he’d do anything for the people he considered his family.”
Johnson’s trial was the first federal capital trial of a man with an intellectual disability, according to his lawyers. Although federal law at the time prohibited the death sentence for anyone who was “mentally retarded” — a now-discredited term that was used to describe a range of intellectual disabilities — courts had limited experience dealing with intellectual disability claims.
Johnson’s own trial lawyers relied on a psychologist with no expertise in intellectual disability. That psychologist claimed Johnson did not have an intellectual disability, based on an interpretation of Johnson’s IQ test score that is now considered inaccurate. Therefore, the jury was never asked to consider whether Johnson had an intellectual disability that would disqualify him from a death sentence.
Since then, multiple experts have reviewed records from Johnson’s youth and concluded he has an intellectual disability.
“Under the Constitution, Mr. Johnson is barred from execution,” Johnson’s lawyers wrote in a court filing last week. “Decades ago, evidence was presented in Mr. Johnson’s capital sentencing hearing that decisively asserted he was not intellectually disabled. That evidence was and is decisively and conclusively invalid and unreliable, under current medical standards.”
‘Arbitrary And Inequitable’
The last person scheduled to be put to death by the Trump administration is Dustin Higgs, a 48-year-old Maryland man who is recovering from a recent COVID-19 infection.
Higgs has been on death row since 2001. He was sentenced to death for his role in the 1996 deaths of three women in a national park.
The government does not claim he actually murdered the women. The convicted shooter in the case, Willis Mark Haynes, received a life sentence for the women’s deaths. Higgs was prosecuted on the theory that he ordered Haynes to shoot the victims and was the ultimate mastermind behind the crime.
“It is arbitrary and inequitable to punish Mr. Higgs more severely than the actual killer,” Higgs’ lawyers argued in a clemency petition to Trump, urging the outgoing president to commute their client’s sentence to life without the possibility of parole. “Mr. Higgs has adjusted exceptionally well to life in prison and has long been a model prisoner. His demonstrated record of positive adjustment makes him particularly well-suited to peacefully live out the remainder of his life in custody.”
Higgs’ path to death row began on Jan. 27, 1996, when he and two friends, Haynes and Victor Gloria, were hanging out with three women inside Higgs’ apartment. At some point, the women — Tamika Black, 19, Tanji Jackson, 21, and Mishann Chinn, 23 — left on foot after an argument.
The men followed in Higgs’ van and picked them up. Higgs drove the van into the Patuxent wildlife refuge, a federal property within the jurisdiction of the United States Park Police. At some point, the van stopped. The women got out. It was there that Haynes shot them.
Haynes, who is serving a life sentence, strongly 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 drunk and high when he shot the women and was not thinking straight. He added that Higgs was angry at him for killing them.
Shawn Nolan, one of Higgs’ attorneys, said that it was unjust for Higgs to receive the death penalty when Haynes was able to live out his days in prison. He added that the government’s theory was supported almost entirely by an unreliable eyewitness — the third man there that night, Gloria — who received a 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. And he shouldn’t be executed,” he said.
Nolan said he was extremely worried about how Higgs’ recent COVID-19 diagnosis in late December might interact with the lethal injection drug scheduled to be administered on Friday. He presented an X-ray to a district court last Tuesday showing that Higgs has lung damage. According to medical experts who testified on Higgs’ behalf, he is at a higher risk of consciously experiencing pulmonary edema — which induces terrifying and painful sensations of drowning and suffocation — during the execution.
“COVID causes lung damage that takes many weeks to resolve,” Nolan said. “Moving forward the execution now is just awful and unconscionable.”
Higgs has a close relationship with his son Da’Quan, who was born after he was arrested. “My father ... he’s very special to me. He cares deeply for me. He always wants me to be on the right track,” Da’Quan said in a clemency video filmed for Higgs.
“Every time I feel like I’m about to do something wrong, I hear my father telling me: Choose the right friends. Don’t be a follower,” he went on. “He’s my motivation in life. If he wasn’t in my life, I don’t know where I would be.”
In an interview with HuffPost, Enidsia Darby, Da’Quan’s mother, urged the government to think about how executing Higgs might impact his son. Higgs is a very caring and compassionate person, she said, with a lot of love to share with his family.
“It’s an injustice,” she said. “He is being executed for something that he did not do.”