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’s execution was 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 federal government has carried out more federal executions since last summer than in the previous 67 years combined.
The Trump administration has argued 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 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 the schedule has been rushed in a way that neglected appropriate deliberation of the legality of the killings, and that they unfairly targeted both people of color and those with severe trauma.
Some legal analysts note that Higgs’ execution was enabled by the Supreme Court through a maneuver they describe as 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, where he ordered one of his friends to shoot the three women, one of whom had allegedly rebuffed Higgs’s advances.
Higgs has said he is innocent and that he did not order the killings. Willis Haynes, who fired the shots and is serving a life sentence, has disputed the prosecution’s argument that Higgs coerced him into the act. “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,” Haynes said in a signed affidavit.
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.”
Shawn Nolan, Higgs’s attorney, attempted to delay the execution on the basis that it was cruel due to concerns that Higgs’s Covid-19 diagnosis might intensify the effects of the lethal injection of pentobarbital. Also at issue was whether Higgs could be executed in Indiana, where he was being held, after being sentenced in Maryland under 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 am 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’s execution as “unprecedented” and “beyond extraordinary.”
Slate’s legal writer Mark Joseph Stern explained that in Higgs’s case, the high court circumvented the traditional appeals process in order to swiftly provide legal backing to Trump’s order to proceed with the execution before he left office, despite questions about Higgs’s sentencing:
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 6-3 vote, in which the Court’s liberal wing voted against clearing the way for the execution, was accompanied by a blistering dissent from Justice Sonia Sotomayor.
“This is not justice,” Sotomayor wrote, arguing 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 that of 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 the Court was negligent in considering the constitutionality of the executions and that it had failed in its duty to examine unusual issues, such as how the pandemic might affect the executions’ legality. “How just is a legal system that would execute an individual without consideration of a novel or significant legal question that he has raised?” Breyer asked in his dissent.
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 — including Vox’s Ian Millhiser — to describe a majority-conservative court as an “anti-democratic threat.” Santos’s comments underscore concerns that the Court has become an institution that often privileges conservative political goals over traditional process.
Trump’s capital punishment agenda
Higgs’s 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 during 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 months 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 its lowest 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 at the state level was carried out with much less frequency compared to preceding decades, due largely 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. Barr, for instance, described the Trump administration’s commitment to the death penalty as carrying out the punishment against “the worst criminals.”
But as the ACLU pointed out, many of those executed don’t tick off the conventional boxes used to describe the “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 ways it can be carried out: In 2020, the Department of Justice created and finalized a rule that allows the government to use methods such as electrocution and firing squads to execute prisoners.
But while the revival of federal capital punishment has been a signature feature of Trump’s policy agenda, the extent to which it will be part of his legacy is unclear. President-elect Joe Biden has said he will work to abolish the federal death penalty, and Senate Democrats recently put out legislation to do the same.