Capital Punishment in the Final Days of Trump

Another  federal execution was just carried out early Wednesday. Two more are scheduled for this week after both stays were lifted. Elizabeth Weill-Greenberg reports on these last three cases and declining U.S. support for the death penalty. 

By Elizabeth Weill-Greenberg
The Appeal

Support for the death penalty has reached its lowest level in nearly 50 years. Twenty-two states have abolished capital punishment. Another 12 states have not carried out an execution in at least 10 years, according to the Death Penalty Information Center’s year-end report for 2020. 

Yet, at the federal level, the Trump administration has executed 11 people since July, counting Lisa Montgomery, who was killed early on Wednesday. Two men — Dustin Higgs and Cory Johnson are both scheduled to die this week after their stays of execution, announced on Tuesday, were later lifted. 

Last year, Colorado became the latest state to ban the death penalty. And voters not only elected a president who opposes capital punishment, but in at least nine major counties they elected chief prosecutors who said they would never or rarely seek a death sentence, according to DPIC’s report. 

In Los Angeles County, death penalty opponent George Gascón defeated incumbent District Attorney Jackie Lacey. During Lacey’s tenure, of the 22 people sentenced to death from Los Angeles County, nearly all are people of color.

Last month, Gascón issued a directive stating his office will never seek a death sentence or execution date, and will not defend existing death sentences.

For the more than 200 people already on death row who were sentenced in Los Angeles County, his office, according to the policy, will review each case “with the goal of removing the sentence of death.” The overwhelming majority of people on death row who were sentenced in Los Angeles County are people of color. 

Last week, 12 chief prosecutors in Virginia sent a letter to legislative leaders calling on them to pass a number of criminal justice reforms, including a ban on the death penalty. A death sentence has not been handed down in Virginia since 2011, according to DPIC. 

“The death penalty is unjust, racially biased, and ineffective at deterring crime,” the prosecutors wrote. “It is past time for Virginia to end this antiquated practice.”

Political Liability

Opposition to the death penalty was once considered a political liability. In fact, the path to death row for many of those facing execution was paved by Republican and Democratic lawmakers. 

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During the 1988 presidential campaign, CNN’s Bernard Shaw asked democratic nominee Michael Dukakis if he would support the death penalty for a person who raped and murdered his wife. Dukakis, a lifelong death penalty opponent, said he would not. Pundits have lambasted his answer, declaring that it effectively ended his presidential run. 

Such scruples would not be an issue for the Democratic Party’s next nominee, Bill Clinton, then governor of Arkansas. 

During the 1992 presidential campaign, Clinton returned to Arkansas to oversee the execution of Ricky Ray Rector. More than a decade earlier, Rector, who was Black, shot and killed a white police officer, and then shot himself in the head, effectively lobotomizing himself. At his last meal, Rector told a guard he was saving his pecan pie for later, according to news reports.  

Two years later, then-President Clinton signed the Violent Crime Control and Law Enforcement Act of 1994, colloquially known as the 1994 crime bill, which then-Sen. Joe Biden championed. Included in the bill was the Federal Death Penalty Act of 1994, which expanded the types of crimes eligible for the death penalty. 

President Barack Obama’s Department of Justice sought and secured death sentences for more than a dozen people. During his lame duck period, Obama commuted the sentences of just two people from death row.

“Their failure to act certainly empowered the Trump administration to carry out these executions,” said Robert Dunham, executive director of the Death Penalty Information Center. 

Stays of Execution 

Federal prosecutors with Obama’s Department of Justice also fought appeals from death row prisoner Lisa Montgomery, who was just put to death after a brief stay of execution. 

Thousands of people signed petitions calling for Montgomery’s sentence to be commuted, and some were advocating for her release from prison. In 2004, Montgomery went to the home of Bobbie Jo Stinnett in Skidmore, Missouri, killed her, and used a knife to remove the fetus from her body. Montgomery, who has been diagnosed with severe mental illnesses, was sexually and physically tortured as a child and adult. 

Dustin Higgs

Dustin Higgs was prosecuted under the Federal Death Penalty Act of 1994 for the murders of three women in Prince George’s County, Maryland. In the last weeks of Clinton’s presidency, on Jan. 3, 2001, Higgs received nine death sentences. 

The government’s case against Higgs was largely based on the testimony of Victor Gloria, who testified pursuant to a plea agreement. In the early morning hours of Jan. 27, 1996, Tanji Jackson and Higgs got into an argument. As Jackson and her two friends left Higgs’s apartment, she threatened to have them “f—ed up or robbed,” Gloria testified.

Higgs put his gun in his coat, and he, Gloria, and Willis Haynes pursued the women, according to Gloria’s testimony. They found them walking on the side of the road. They got into Higgs’ minivan, and Higgs drove them to the Patuxent National Wildlife Refuge. There, the women exited the minivan. Gloria testified that Higgs passed the gun to Haynes, who followed them and fired the fatal shots.

Haynes was tried and convicted. The prosecution sought a death sentence, but the district court sentenced him to life without the possibility of parole. Higgs then went to trial, was convicted, and sent to death row. Gloria pleaded guilty to accessory after the fact, and was sentenced to 84 months’ imprisonment and three years’ supervised release. 

In 2012, Haynes wrote in a sworn declaration that Higgs did not tell him to shoot the victims. He had previously told authorities that Higgs ordered him to kill the women, according to the Washington Post.  

“Dustin didn’t make me do anything that night or ever,” he wrote in 2012. “So many times since that night I’ve wished that I hadn’t got out of [the vehicle]. The girls got out and I went after them. I wasn’t thinking at all that night. … I shot the girls because I thought they were a serious threat to Dustin’s life. … Maybe I was taking out all the abuse and problems I had been through in my life. I was angry from what I had been through. But that’s no excuse.”

Haynes’ mother physically and emotionally abused him when he was a child, according to The Washington Post. He began drinking when he was 7 and at 11, he tried to kill himself. During his teenage years, he lived in foster homes. 

After Haynes shot the women, he and Higgs dropped off Gloria and got into an argument, Haynes wrote in his declaration. “He was upset that I shot the women,” he wrote. “Dustin screamed at me about it.”

More Than a Million Signatures

More than a million people have signed a petition to free Higgs, who they say was wrongfully convicted. His son has pleaded for his father’s life to be spared. 

“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,” he wrote in a letter included in his father’s clemency petition. “He was always there and has been my number one supporter, showed me what love is, and taught me to be a better man. I cannot imagine or think of where I could’ve ended up without the love and encouragement of my father.”

Like many of those on death row, Higgs’s childhood was marred by violence, abuse, and trauma, according to his clemency petition. At school, he struggled with a learning disability. Other students mocked him, calling him ableist epithets. His father was largely absent other than to beat his mother. He hit Higgs when he tried to protect her. 

In 1981, Higgs’s mother was diagnosed with breast cancer, according to his clemency petition. He stayed by her bed for hours, and brought her food and water. Less than a year after her diagnosis, when he was 10, she died in their home. His father was incarcerated at the time. Soon after, he began wetting the bed, and continued to do so for about the next three years. 

Last month, Higgs, who has asthma, tested positive for Covid-19. The disease has caused severe damage to Higgs’ lungs, according to his attorney Shawn Nolan, chief of the capital habeas unit at the Federal Community Defender Office for the Eastern District of Pennsylvania. 

The government had planned to execute Higgs using pentobarbital which, because of his lung damage, may result in his lungs filling with fluid, causing him to experience a drowning sensation, which Nolan compares to waterboarding.

“He does not want to be executed,” said Nolan. “He’s very hopeful that the courts are going to see this for what it is and put a stop to this execution.” 

Cory Johnson Also Has Covid  

Cory Johnson  has also tested positive for the disease. (Johnson’s first name is spelled Cory and Corey in court records.) In 1993, he was convicted of seven counts of capital murder and was sentenced to seven death sentences for killings that the prosecution claimed were linked to Johnson’s drug selling activities. According to his attorneys, Johnson is intellectually disabled and, therefore, exempt from execution. Thousands have signed a petition to stop his execution. 

“Corey Johnson had three childhood IQ scores placing him in the range of a person with intellectual disability,” his attorneys wrote to the U.S. Court of Appeals for the Fourth Circuit in a motion filed last week, requesting a stay of his execution. “He has significant, well-documented, deficits in virtually every aspect of daily living, including nearly all skills necessary for independent living.”

Momentum is building to end the federal death penalty, buoyed by an improbable ally — Biden, who boasted in 1992 that a crime bill he sponsored does “everything but hang people for jaywalking.” But on last year’s presidential campaign trail, Biden said he would work to pass legislation to abolish the federal death penalty. 

“All indications are that he has learned from history,” Dunham said of Biden. However, he cautioned, “Words are just words until they’re acted on so we have to wait to see what he believes versus what was just rhetoric.”

[This article was updated at 8:20 on Jan. 14 to reflect the lifting of stays of execution for Cory Johnson and Dustin Higgs.]

Elizabeth Weill-Greenberg is a staff reporter at The Appeal. She can be reached through Twitter at @elizabethweill.

 This article is from The Appeal, a non-profit media organization that produces news and commentary on how policy, politics, and the legal system affect America’s most vulnerable people.

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