The Supreme Court cleared the way Friday for the president’s final execution, ensuring that President Donald Trump’s execution spree on his way out of office cost 13 people their lives. Dustin Higgs, who was convicted of ordering the murder of three women in Maryland in 1996, died by lethal injection early Saturday morning. Justices Sonia Sotomayor and Stephen Breyer authored dissents to the ruling, arguing that the court has circumvented its usual processes to enable these speedy executions.
The Trump administration resumed executions of federal inmates last year, ending a 17-year hiatus. And by the end of his term, Trump became the president who has overseen the most federal executions in over 120 years.
According to SCOTUS Blog editor James Romoser, the Supreme Court’s ruling was “highly unusual” because it does not often intervene in cases before an appeals court has issued a decision. “Such interventions are uncommon, and on the rare instances when the court does consider cases in that posture, it typically resolves them only after an oral argument and extended deliberation, neither of which occurred here,” Romoser wrote.
All three liberals on the court dissented. In her dissent, Sotomayor said that the court has frequently bypassed its usual process to allow these executions to occur. She wrote, “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, breakneck timetable of executions.”
Sotomayor also noted that the court did not sufficiently consider that Higgs was recently diagnosed with Covid-19, which has been spreading like wildfire through the prison system. The damage to his lungs caused by the virus combined with a lethal injection of pentobarbital, she said, would cause him to feel like he is drowning, a sensation she said would be “akin to waterboarding.” She also noted that Higgs was sentenced in Maryland, which has abolished the death penalty, but he will be executed in Indiana.
The justice also criticized some of the other executions the court has allowed Trump to carry out, saying the court disregarded evidence that some of those he executed may have had intellectual disabilities. And, she wrote, the new 2019 protocol for executions by lethal injection, which uses one drug instead of a cocktail of three, likely violates the Eighth Amendment, which protects against “cruel and unusual punishments.”
As Sotomayor concluded, “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.”