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The federal prison complex in Terre Haute, Indiana where Dustin Higgs was executed. | Michael Conroy/AP

Higgs was the 13th federal prisoner executed since July 2020.

In the early hours of Saturday morning, the Trump administration executed Dustin Higgs for taking part in a triple murder in Maryland in 1996, a crime of which he claimed to be innocent, including with his final words.

Higgs’ execution marked the the 13th, and final, federal execution carried out by the Trump administration over the course of six months, a run which has broken starkly with modern precedent both in terms of speed and intensity: The administration has carried out more federal executions since last summer than presidents have in the last 67 years combined.

The Trump administration has argued that the executions were conducted as a matter of law, noting that all of those executed were found guilty at trial. “If you ask juries to impose and juries impose it, then it should be carried out,” former Trump administration attorney general Bill Barr, told the Associated Press days before his resignation in December.

But many criminal justice advocates — and some members of the Supreme Court — have argued that the schedule has been rushed in a way that neglected appropriate deliberation of the legality of the killings, and that they unfairly targeted people of color, as well as, people suffering from severe trauma.

And many legal analysts note that Higgs’ execution was greenlit by the Supreme Court through a maneuver that they describe as an unprecedented and a transparent bid to facilitate Trump’s agenda.

Higgs was found guilty in 2000 of first-degree premeditated murder, three counts of first-degree felony murder, and three counts of kidnapping resulting in death. The Justice Department said that in 1996 Higgs traveled with two male friends and three women to a Maryland wildlife refuge, and ordered one of his friends to shoot the three women, one of whom had allegedly rebuffed an advance by him.

Higgs has said he is innocent of the crime, and that he gave no order for a killing. His friend who fired the shots who is serving a life sentence, Willis Haynes, has disputed the prosecutions’ argument that Higgs coerced him into the act in a signed affidavit, saying, “The prosecution’s theory of our case was bullshit. Dustin didn’t threaten me. I was not scared of him. Dustin didn’t make me do anything that night or ever.”

Higgs reportedly claimed innocence again in his final words. “I’d like to say I am an innocent man. … I am not responsible for the deaths,” he said, while mentioning the names of the victims. “I did not order the murders.”

Higgs was diagnosed with Covid-19 before the execution, and his attorney had attempted to delay the execution on the basis that it was cruel, because of concerns that the virus that the effects of the virus on his lungs might intensify the lethal injection of pentobarbitol. Also at issue was whether Higgs could be executed in Indiana, where he was being held, after being sentenced in Maryland using a death penalty law that no longer exists.

The execution went forward anyway. Higgs was given a lethal injection at the federal penitentiary in Terre Haute, Indiana, and pronounced dead at 1:23 a.m. on Saturday morning.

The Supreme Court appears to have acted extraordinarily to back Trump

A number of legal analysts have described the Supreme Court’s handling of Higgs’ execution as “unprecedented” and “beyond extraordinary.”

Slate’s legal writer Mark Joseph Stern explained that with Higgs, the high court ended up circumventing the traditional appeals process in order to swiftly provide legal backing to Trump’s order to proceed with the execution despite questions about Higgs’ sentencing before he left office:

Federal law requires a federal death sentence to be implemented “in the manner prescribed” by the state in which it was imposed. But Higgs was sentenced by a federal court in Maryland, which abolished capital punishment in 2013, so there is no “manner prescribed” for Higgs’ execution. An appeals court upheld the district court’s stay, setting oral arguments for Jan. 27. On Jan. 11, Trump’s Department of Justice asked the Supreme Court to clear away these roadblocks. In a stunning move, the court agreed: It issued a summary decision on the merits of the case, short-circuiting the traditional appeals process.

The Supreme Court’s 6-3 vote, in which the liberal wing of the court voted against the decision to clear the way for the execution, was accompanied by a blistering dissent from Justice Sonia Sotomayor.

“This is not justice,” Sotomayor wrote in her dissent, arguing that the high court was not fulfilling its duty to deliberative process in green-lighting the act and that it had similarly failed to do so with respect to the 12 executions prior to Higgs’. “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.”

Justice Stephen Breyer, argued that the Court had been negligent in considering the constitutionality of the executions, and that it had particularly failed in its duty to unusual issues, such as how the pandemic might affect the legality of executions. In his dissent, he asked, “How just is a legal system that would execute an individual without consideration of a novel or significant legal question that he has raised?”

Overall, Jaime Santos, a partner at Goodwin Procter’s appellate litigation practice, described the ruling as “a political decision, not a doctrinal one and not one that is in any way consistent with the norms and precedents governing Supreme Court practice.”

It is decisions such as these that have led observers like Vox’s Ian Millhiser to describe a conservative majority court as an “anti-democratic threat.” And Santos’ comments underscore concerns that the Supreme Court has become an overly partisan institution which values political goals over traditional process.

Trump’s capital punishment agenda

Higgs’ death marks the end of a remarkably focused program of conducting federal executions that critics of capital punishment have deemed “a killing spree.” Strikingly, the federal executions were conducted amid a pandemic that drastically shrunk the number of executions carried out on the state level, and in the wake of a racial justice movement critical of an overly punitive criminal justice system.

Experts say Trump’s emphasis on capital punishment in his final half year in office marked a sharp departure from federal government norms, a trend which stands out all the more because support for the death penalty is at the lowest its been in decades.

“No one has conducted this number of federal civilian executions in this short period of time in American history,” Robert Dunham, executive director of Death Penalty Information Center, told Vox in December.

The uptick in federal executions also stood out in a year where capital punishment was used less than it had been in decades at the state level, largely due to pandemic-related slowdowns and shutdowns of the criminal justice system.

“The fact that we’re having a record-high number of federal executions, at the same time that we’re near a record low in state executions, in the middle of a pandemic, shows how much the Trump administration is either out of touch or that it cannot resist gratuitous acts of cruelty,” Dunham told Vox in December.

The Trump administration has routinely defended its use of capital punishment. For instance, Barr described the Trump administration’s commitment to the death penalty as carrying out the punishment against “the worst criminals.”

But as the ACLU points out, many of those executed don’t tick off the conventional boxes for “worst criminals”:

Our federal government killed two Black men for crimes they committed 20 years ago as teenagers; it killed a woman who was a victim of unthinkable sexual violence and torture; it killed two Black men who didn’t kill anyone; and a man with an intellectual disability so severe that it’s impossible to ignore in his final words. The Supreme Court paved the way for many of these executions to go forward despite lower court findings that the executions were unconstitutional or barred by federal law.

Beyond seeking to revive and expedite the use of capital punishment, the Trump administration also expanded the way that it can be carried out. Last year the Justice Department created and finalized a rule that allows the government to use more ways to kill prisoners, including electrocution and firing squad.

But while the revival of federal capital punishment has been a signature feature of Trump’s political and policy agenda, it is not clear to what extent it will be part of his legacy. President-elect Joe Biden has said he will work to abolish the federal death penalty, and Senate Democrats recently put out legislation that would abolish it.

Author: Zeeshan Aleem

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