UNITED STATES v. DUSTIN JOHN HIGGS
No. 20–927 (20A134)
SUPREME COURT OF THE UNITED STATES
January 15, 2021
592 U. S. ____ (2021)
ON PETITION FOR WRIT OF CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT AND APPLICATION TO VACATE STAY
The application to vacate stay presented to THE CHIEF JUSTICE and by him referred to the Court is granted. The January 13, 2021 order of the Court of Appeals granting a stay is vacated.
JUSTICE KAGAN would deny the petition for writ of certiorari before judgment and the application.
UNITED STATES v. DUSTIN JOHN HIGGS
No. 20–927 (20A134)
SUPREME COURT OF THE UNITED STATES
January 15, 2021
592 U. S. ____ (2021)
BREYER, J., dissenting
Last July the Federal Government executed Daniel Lee. Lee’s execution was the first federal execution in seventeen years. The Government’s execution of Dustin Higgs tonight will be its thirteenth in six months. I wrote in July that “the resumption of federal executions promises to provide examples that illustrate the difficulties of administering the death penalty consistent with the Constitution.” Barr v. Lee, 591 U. S. ___, ___ (2020) (dissenting opinion) (slip op., at 2). The cases that have come before us provide several of those examples.
I agree with much of what JUSTICE SOTOMAYOR says in
Consider some of the other questions that the federal death penalty cases have raised. To what extent does the Government’s use of pentobarbital for executions risk extreme pain and needless suffering? See Lee, supra, at ___ (BREYER, J., dissenting) (slip op., at 2). Has an inmate demonstrated a sufficient likelihood that she is mentally incompetent—to the point where she will not understand the fact, meaning, or significance of her execution? Sеe Montgomery v. Warden, ante, p. ___; Barr v. Purkey, 591 U. S. ___, ___ (2020) (SOTOMAYOR, J., dissenting from grant of vacatur) (slip op., at 1). Should a court apply contemporary diagnostic standards to determine whether an inmate is intellectually disabled at the time of his execution, such that the execution is unlawful? See Bourgeois v. Watson, ante, p. ___. Is a defendant’s second habeas challenge to his death sentence subject to the demanding standard for successive challenges, even though Government conduct prevented him from being able to bring those claims in his first habeas petition? See Bernard v. United States, ante, p. ___. Can a defendant’s second habeas challenge include a claim that his trial counsel was constitutionally inadequate
None of these legal questions is frivolous. What are courts to do when faced with legal quеstions of this kind? Are they simply to ignore them? Or are they, as in this case, to “hurry up, hurry up”? That is no solution. Higgs’ case illustrates this dilemma. The District Court ruled against the Government and the Government appealed. The Fourth Circuit denied the Government’s request to dispense with oral argument “in light of the novel legal issues presented” and set oral argument for January 27. App. to Pet. for Cert. 29a. The Circuit then stayed the execution pending further order. Order in No. 20–18 (Jan. 13, 2021). The Gоvernment now seeks certiorari before judgment, an extraordinary remedy that is to be granted only upon a showing that “the case is of such imperative public importance as to justify deviation from normal appellate practice.” This Court’s Rule 11. Given the finality and severity of a death sentence, it is particularly important that judges consider and resolve challenges to an inmate’s conviction and sentence. Hоw just is a legal system that would execute an individual without consideration of a novel or significant legal question that he has raised?
Yet, to consider these questions, some of which (such as mental competency) may not arise until a few weeks before
But this case involves a procedural issue. The Fourth Circuit issued a stay of the execution and has not yet resolved the Government’s appeаl. It is rare for us to consider a question before the Circuit has decided it. And I would not depart from ordinary practice here. Consequently, I dissent.
UNITED STATES v. DUSTIN JOHN HIGGS
No. 20–927 (20A134)
SUPREME COURT OF THE UNITED STATES
January 15, 2021
592 U. S. ____ (2021)
SOTOMAYOR, J., dissenting
After seventeen years without a single federal execution, the Government has executed twelve people since July. They are Daniel Lee, Wesley Purkey, Dustin Honken, Lezmond Mitchell, Keith Nelson, William LeCroy Jr., Christopher Vialva, Orlando Hall, Brandon Bernard, Alfred Bourgeois, Lisa Montgomery, and, just last night, Corey Johnson. Today, Dustin Higgs will become the thirteenth. To put that in historical context, the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades.
This unprecedented rush of federal executions has predictably given rise to many difficult legal disputes. One source of confusion has been the Federal Death Penalty Act (FDPA), which Congress enacted in 1994 tо guide the imposition and implementation of federal death sentences.
Another source of uncertainty has been the Department
Against this backdrop of deep legal uncertainty, the DOJ did not tread carefully. Simultaneous with the announcement of the 2019 Protocol, it schеduled five executions; eight would follow in the months to come. This rapid pace required those facing execution to fast-track challenges to their sentences. Rather than permit an orderly resolution of these suits, the Government consistently refused to postpone executions and sought emergency relief to proceed before courts had meaningful opportunities to determine if the executions werе legal.
Throughout this expedited spree of executions, this Court has consistently rejected inmates’ credible claims for relief. The Court has even intervened to lift stays of execution that lower courts put in place, thereby ensuring those prisoners’ challenges would never receive a meaningful airing. The Court made these weighty decisions in response to emergency applications, with little opportunity for proper briefing and consideration, often in just a few short days or even hours. Very few of these decisions offered any public explanation for their rationale.
This is not justice. After waiting almost two decades to resume federal executions, the Government should have proceeded with some measure of restraint to ensure it did so lawfully. When it did not, this Court should have. It has not. Because the Court continues this pattern today, I dissent.
The Govеrnment will execute Dustin Higgs tonight. In 2001, the United States District Court for the District of Maryland sentenced Higgs to death for his involvement in the kidnapping and killing of three people. The FDPA requires that a federal death sentence be “implement[ed]” “in the manner prescribed by the law of the State in which the sentence is imposed.”
In August 2020, the Government asked the District Court to amend its Judgment and Order to designate Indiana, where Higgs and all other federal deаth-row prisoners are imprisoned, as the alternate State. Consistent with its current practice, the Government set an execution date before the District Court could rule. The District Court denied the Government’s motion, holding that the court had no authority to modify its original judgment. See 2020 WL 7707165, *4 (D Md., Dec. 29, 2020) (“The Government’s initial, extraordinary request that the Court amend its original judgment and sentence is something that the Court plainly cannot do”). The Government appealed to the Court of Appeals for the Fourth Circuit, which scheduled oral argument for January 27, 2021. Unwilling to wait, the Government asks this Court to grant certiorari and summarily reverse the District Court without normal briefing or argument, and direct the District Court to designate Indiana as the Government requested.
Ordinarily, this Court grants petitions for certiorari before judgment only “upon a showing that the case is of such
II
Sadly, it is not surprising that the Court grants this extraordinary request. Over the past six months, this Court has repeatedly sidestepped its usual deliberative processes, often at the Government’s request, allowing it to push forward with an unprecedented, breaknеck timetable of executions. With due judicial consideration, some of the Government’s arguments may have prevailed and some or even many of these executions may have ultimately been allowed to proceed. Others may not have been. Either way, the Court should not have sanctioned these executions without resolving these critical issues. The stakes were simply too high.
A
Even after thirteen federal executiоns in six months, basic, recurring questions about the FDPA and the 2019 Protocol remain unanswered. For example, what does it mean to “implement[]” a federal death sentence “in the manner prescribed by the law of the State”?
Another outstanding question concerns the FDPA’s provision that “[a] sentence of death shall not be carried out upon a person who is [intellectually disabled].”
The Court has also allowed executions to proceed in the face of significant challenges to the 2019 Protocol’s method of execution. A federal district court found that Daniel Lee, Wesley Purkey, and Keith Nelson were likely to succeed in showing that the 2019 Protocol violates the Eighth Amendment because pentobаrbital causes fluid to rapidly accumulate in the lungs, resulting in “‘extreme pain, terror and panic.’” See In re Federal Bureau of Prisons’ Execution Protocol Cases, 471 F. Supp. 3d 209, 218–219 (DC 2020). Accordingly, the District Court preliminarily enjoined executions under the 2019 Protocol. Id., at 225. This Court vacated the injunction and allowed the executions to move forward, concluding that the Government’s “competing expert testimony” rendered a “last-minute” stay inappropriate. Barr v. Lee, 591 U. S. ___, ___ (2020) (per curiam) (slip
This Court repeated this error just this week. On December 16, 2020, both Corey Johnson and Dustin Higgs tested positive for COVID–19. They quickly moved to enjoin their executions, arguing that lung damage caused by the virus substantially increased the likelihood they would suffer torturous effects if executed with pentobarbital. The District Court held an evidentiary proceeding and agreed. In re Federal Bureau of Prisons’ Execution Protocol Cases, ___ F. Supp. 3d ___, ___–___, 2021 WL 106576, *5–*9 (DDC, Jan. 12, 2021). This time, the Court of Appeals stayed the injunction, relying on this Court’s flawed decision in Lee. Order in Roane v. Rosen, No. 21–5004, p. 4 (CADC, Jan. 13, 2021) (Katsas, J., concurring). This Court left that ruling in place, again allowing these executions to proceed despite the District Court’s careful fact-finding and the risk of needless and significant pain.
B
The issues left unresolved during this saga do not end with the FDPA and 2019 Protocol. Many other challenges deserved this Court’s review. None were granted. While I cannot catalogue all these сlaims here, some particularly troubling ones bear mention.
Consider again Corey Johnson. In addition to the claim already discussed, Johnson sought a reduction of his death sentence under the First Step Act of 2018,
Judge Motz was right. In fact, the courts of appeals have divided on the proper way to interpret the statute’s “covered offense” definition.2 When Johnson sought a stay, this Court had already granted certiorari to resolve a split implicating this question. See Pet. for Cert. in Nо. 20-5904. Rather than granting Johnson a stay and holding his case for reconsideration in light of this, the Court allowed the Government to execute Johnson without any appellate court ruling on the merits of his claims.
Consider next Brandon Bernard. Bernard, who was only eighteen when he committed the crimes for which he was executed, raised credible allegations that the Government secured his death sentence by withholding exculpatory evidencе and eliciting knowingly false testimony in violation of Brady v. Maryland, 373 U. S. 83 (1963), and Napue v. Illinois, 360 U. S. 264 (1959). But Bernard never received consideration of those claims on the merits. Instead, the Court of Appeals for the Fifth Circuit held that, even though Bernard could not have known about the suppressed evidence when he filed his first habeas petition,
As Bernard correctly argued, the Fifth Cirсuit’s ruling cannot be reconciled with this Court’s decision in Panetti v. Quarterman, 551 U. S. 930 (2007), which held that the bar on second-or-successive petitions does not apply to claims that were not ripe when an inmate filed his first-in-time petition. Bernard v. United States, 592 U. S. ___, ___ (2020) (SOTOMAYOR, J., dissenting) (slip op., at 4). Indeed, the Fifth Circuit’s rule makes no sense, as it “perversely rewards the Government for keeping exculpatory information secret until after an inmate’s first habeas petition has been resolved.” Id., at ___ (slip op., at 5). Unmoved, this Court denied Bernard’s petition for a writ of certiorari and application for a stay, leaving this dangerous precedent in place and, again, condoning the Government’s tactics.
Finally, consider Wesley Purkey and Lisa Montgomery, whose executions this Court allowed even though the district courts concluded they were likely to succeed in showing that they had no “‘rational understanding’ of why the State want[ed] to executе [them].” See Madison v. Alabama, 586 U. S. ___, ___ (2019) (slip op., at 17) (quoting Panetti, 551 U.S., at 958). Wesley Purkey suffered from Alzheimer’s disease. Thousands of pages of evidence suggested that he earnestly and steadfastly believed that the Government planned to execute him in retaliation for his “protracted jailhouse lawyering” to expose prison abuses. Electronic Case Filing in No. 1:19–cv–3570 (DDC), Doc. 1-18, p. 12; see also Barr v. Purkey, 591 U. S ___, ___–___ (2020) (SOTOMAYOR, J., dissenting) (slip op., at 4–5). The District Court therefore preliminarily enjoined Purkey’s execution. Skipping over the Court of Appeals, the Government sought immediate relief from this Court, which vacated the injunction without comment.
III
There is no matter as “grave as the determination of whether a human life should be taken or spared.” Gregg v. Georgia, 428 U. S. 153, 189 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). That decision is not something to be rushed or taken lightly; there can be no “justice on the fly” in matters of life and death. See Nken v. Holder, 556 U. S. 418, 427 (2009). Yet the Court has allowed the United States to execute thirteen people in six months under a statutory scheme and regulatory protocol that have received inadequate scrutiny, without resolving the serious claims the condemned individuals raised. Those whom the Government executed during this endeavor deserved more from this Court. I respectfully dissent.