An appeals court ruled Thursday that the final two federal executions under the Trump administration can proceed as planned this week, scrapping a lower court ruling delaying them until March.
The U.S. Court of Appeals for the District of Columbia ruled in a 2-1 decision that the executions of Cory Johnson, who is scheduled to be put to death on Thursday, and Dustin Higgs, who will be put to death on Friday, should not be delayed. District Judge Tanya Chutkan had paused their punishments after both inmates tested positive for COVID-19.
Johnson and Higgs had previously argued that lung damage from the coronavirus would make the lethal injection they would receive painful and a violation of constitutional protections against cruel and unusual punishment. But Judge Gregory Katsas, a Trump appointee, wrote for the majority that their arguments about health concerns amounted to “conjecture.”
“The record contains only conjecture on whether a lethal injection of pentobarbital would cause any edema before rendering the prisoner insensate,” he wrote.
“Higgs and Johnson each committed multiple murders,” Katsas added. “They have had ample opportunity to file clemency petitions. And the Supreme Court repeatedly has stressed that the public has a ‘powerful and legitimate interest in punishing the guilty’ … which includes ‘an important interest in the timely enforcement of a [death] sentence.'”
Judge Cornelia Pillard, an Obama appointee, dissented, writing that the government had not provided a strong enough argument as to why the executions had to take place this week.
“The government insists that these final scheduled executions must proceed as planned. It fails to explain why they must take place this week. To be sure, the Supreme Court has emphasized that ‘[l]ast-minute stays should be the extreme exception, not the norm,’ in death penalty cases,” Pillard wrote.
“But Johnson’s and Higgs’ claims could not have been brought earlier. As soon as they knew of their COVID-19 diagnoses, they notified the district court; within days, they supplemented their complaints.”
Lawyers for both inmates had called for the government to call off the executions after the appeals court’s ruling.
Johnson was convicted in 1993 of killing seven people in connection to drug trafficking in Virginia, and Higgs was convicted in 2000 of ordering the murders of three Maryland women.
The Trump administration restarted federal capital punishment last summer following a 17-year pause on such executions.
The district court’s delay of the two executions had raised the prospect that Johnson and Higgs would never be put to death given that President-elect Joe Biden, who will take office next week, has vowed to try to abolish the death penalty.