A U.S. appeals court ordered that the last two scheduled federal executions of President Donald Trump's administration could proceed on Thursday and Friday, overturning a lower court's suspension until March to allow the condemned men to recover from COVID-19.
The U.S. Department of Justice announced last month that Corey Johnson, 52, and Dustin Higgs, 48, had been diagnosed with COVID-19 but that it would proceed with their executions. Both men, convicted in separate murders, are being held on death row at a federal prison in Terre Haute, Indiana.
On Tuesday, Judge Tanya Chutkan of the U.S. District Court ordered the executions be delayed until at least March 16 to allow the condemned men to recover, siding with medical experts who said their coronavirus-damaged lungs would result in inordinate suffering if they were to receive lethal injections. This would breach the U.S. Constitution's Eighth Amendment prohibiting "cruel and unusual" punishments, the lawyers argued.
A split panel of judges on the U.S. Court of Appeals for the District of Columbia Circuit overturned Chutkan's stay, 2-1.
"The Eighth Amendment 'does not guarantee a prisoner a painless death — something that, of course, isn't guaranteed to many people,'" said the opinion, citing Supreme Court precedent.
The lawyers representing the two men are appealing to the Supreme Court, whose conservative majority has summarily allowed Trump's previous executions to proceed.
Trump, a Republican and a long-standing advocate of capital punishment, oversaw the resumption of federal executions last summer after a 17-year hiatus as the coronavirus spread. Death row inmates, at least two of their lawyers, other prison inmates and multiple prison and execution staff have since become ill with COVID-19.
President-elect Joe Biden, a Democrat, will be inaugurated next Wednesday, and says he will seek to abolish the death penalty.
Higgs was convicted of overseeing the kidnapping and murder of three women on the Patuxent Research Refuge in Maryland in 1996. He did not kill anyone himself, which his lawyers have argued is grounds for clemency.
Johnson was convicted of murdering seven people in Virginia in 1992 as part of a drug-trafficking ring. His lawyers say he has an intellectual disability that means it would be unconstitutional to execute him. They have said the IQ score of 77 that was presented at his 1993 trial was incorrect, and his real IQ is lower, within the range of the 70-75 threshold courts have used to determine intellectual disability.
Johnson's spiritual adviser, Rev. Bill Breeden, visited with Johnson for several hours on Thursday and said he was still coughing and listless as a result of the coronavirus, and said he expressed remorse about his crimes. Breeden described Johnson's writing level as that of a third-grade schoolchild.
Lawyers for both men, citing medical experts who testified in court, say that their damaged lung tissue would rupture more quickly than usual after lethal doses of pentobarbital, a powerful barbiturate, had been administered.
There could be a period of several minutes in which the men experience drowning as their lungs filled with bloody fluids — a pulmonary edema — before the drug rendered them insensate or killed them, the lawyers argued, calling it a form of torture.
