A federal appeals court on Wednesday evening overturned a stay of execution that had been granted to two men sentenced to death who were to be put to death this week.
Corey Johnson and Dustin Higgs, who are expected to be killed on Thursday and Friday respectively, are both recovering from recent COVID-19 infections.
Their lawyers argued that the men had lung damage from COVID-19, which would make it more likely to suffer of the government’s execution protocol – a lethal injection of pentobarbital – violating constitutional protections against cruel and unusual punishment.
Tuesday, a district court on the men’s side, ordering executions until March to allow their lungs to heal. The government appealed.
In a 2: 1 vote, a panel of the U.S. Court of Appeals for the DC Circuit overturned the lower court’s injunction, allowing the executions to proceed on January 14 and 15 as scheduled.
Johnson and Higgs are the latest two to be killed in the Trump administration’s unprecedented string of executions. An execution – that of Lisa Montgomery – has already taken place this week. Since the Trump administration resumed federal executions last summer, 11 people have been killed. President-elect Joe Biden has said he will work to end the death penalty.
Lawyers for the two men said they would ask the entire court to intervene to reinstate the suspension.
“The government must stop trying to execute Corey Johnson while he is still recovering from the COVID-19 infection he contracted due to the government’s own irresponsibility in carrying out executions during the pandemic” Johnson’s attorney Donald Salzman said in a statement. “There is no reason in principle not to wait until the injunction expires in March to determine whether Mr Johnson’s lungs have healed enough that he does not suffer excruciating pain during an execution . “
Autopsy reports from people who have been performed with pentobarbital show that the drug can cause a condition called flash pulmonary edema, where fluid enters the lungs while the person is still conscious. This can cause a painful sensation similar to suffocation or drowning.
Medical experts who testified in support of Johnson and Higgs speculate that this condition will likely be more painful for people recovering from COVID-19 because the coronavirus causes damage to the lungs.
“For prisoners suffering from lung damage from COVID-19 at the time of execution, flash pulmonary edema will occur even earlier in the execution process, and before brain pentobarbital levels reach their peak,” wrote Gail A. Van Norman, a medical expert consulted by the complainants. “With a reasonable degree of medical certainty, these inmates will experience feelings of drowning and suffocation sooner than a person without a COVID-related lung injury and, therefore, their conscious experience of symptoms of pulmonary edema will be prolonged. “
Johnson is expected to be executed Thursday at 6 p.m. in federal prison in Terre Haute, Indiana, where the death row is located and the site of a COVID-19 outbreak.
A long day of judicial appeals is expected.
The dissenting judge in overturning the stay, Cornelia Pillard of DC Circuit, wrote that the government has not shown why these scheduled final executions are due to take place this week.
“All [Dustin Higgs and Corey Johnson] to ask is that they are not executed in this way when suffering from COVID-19. Holding back their executions until they recover is an alternative solution that is both feasible and easily implemented, ”she wrote.
“I think the government has failed to meet the heavy burden required to question the district court’s information and stay its order,” she added. “Any desire by the government to remove two other executions from its list does not justify concluding otherwise.”
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