Let’s start with one observation — why has this happened?

Easy — the appeal process in death penalty cases can be easily bogged down by the way the Department of Justice responds to defense efforts to derail the carrying out of death sentences.  These are sentences imposed by federal district court judges, with the responsibility for carrying out the sentences placed in the hands of the federal Bureau of Prisons which is part of DOJ.  As a result, the Executive Branch is not able to simply cancel the carrying out of such sentences which are authorized by Congress and affirmed by the Supreme Court to not violate the Eighth Amendment.  So a liberal Presidential administration that disapproves of the death penalty can only interfere with the process, it cannot prevent the process from going forward — unless the President chooses to commute the sentence to something other than the “death penalty.”

Which reminds me — Barack Obama could have commuted every one of these 13 death sentences on his way out of office had it wanted to do so.

I guess none of the defendants in these cases had the same kind of clout with the Obama Administration as did Oscar Lopez Rivera, the Puerto Rico FALN terrorist leader whose sentence Obama commuted 3 days before leaving the White House in January 2017.

During the Obama Administration, DOJ was complicit in assisting defense attorneys in throwing sand in the gears of the process by not litigating aggressively against efforts by those attorneys to have sentences reviewed and reversed, or to oppose attacks by liberal interest groups on the death penalty itself or the various “drug cocktail” combinations to be used by the federal government in the “lethal injection” method of carrying out the sentence.

During the Clinton Administration, after the GOP took over control of Congress in 1994, Congress passed a new law designed to eliminate many of the procedural “games” that defense attorneys had used for decades to drag out the appeals process in death penalty cases — giving it the horrendous title the “Anti-Terrorism and Effective Death Penalty Act of 1996”.  The streamlined procedures and limits on certain types of appeals mechanisms began to come into play during the 16 years of the Bush and Obama Administrations combined.

A sentence of death cannot be imposed in a federal case unless the DOJ prosecutors seek such a penalty when charges are filed, and then produce the required evidence to support the imposition of the death penalty at the time of trial.

The Bush Administration revised the DOJ procedures on filing “death-eligible” cases, making it much more likely that such filings would be approved as compared to the procedures during the Clinton Administration.  I was involved in a case that would have been “death-eligible” during Clinton’s second term, but Main Justice denied my office’s request to seek the death penalty in a multiple homicide case where one of the murders was carried out on federal land.

The Obama Administration made death sentences virtually impossible with their revisions to the Bush procedures.  The Obama Administration process took up so much time — and was so often simply “sat on” by officials at DOJ — that murder cases had to move forward to trial without a final decision on seeking a death sentence ever being made most of the time.

The last federal death sentence that was procedurally ready for carrying out — all appeals of right had been exhausted — took place early Saturday morning with the execution of Dustin Higgs.

Higgs and two others were convicted of the 1996 murder of three young women in the Maryland suburbs of Washington DC. The murders took place within the borders of Maryland, but on land that belonged to the federal government.  The three men and three women had gotten together earlier in the evening for a “triple-date”, but a dispute between the two groups broke out after they returned to Higgs’ apartment.  The evidence presented at trial was that the dispute was over one of the women refusing Higgs’ sexual advances and that she had grabbed a kitchen knife and threatened Higgs with it.  The three women left the apartment on foot and began walking in the direction of DC where they lived.  As they leaving, the woman who had pulled the knife made a threatening remark towards the three men about getting them robbed or assaulted for what Higgs had done.

The three men then took Higgs’ car — with Higgs driving — then drove after the women, who willingly accepted a ride after apologies were apparently offered. When asked if they were being given a ride home, testimony at trial was that Diggs said something to the effect of “Yeah, something like that.”  Before they left the apartment, the testimony was that Higgs made a statement about the woman who threatened him to the effect of “she do know some people” — suggesting that he was taking her threat made against them seriously.

After driving the women to a remote location — on federal land — Higgs ordered the three women to get out of the car.  After they did, Higgs took a revolver from his coat pocket, handed it to the front seat passenger, and told him to “take care of them” and to make sure they were dead.  The three women were all shot and killed while Higgs and the third male remained in the car.

Evidence of their participation was developed several years after the murders, while Higgs was in federal prison serving a 17-year sentence for drug trafficking.  Higgs and the shooter were indicted for murder, and they had separate trials with separate juries in federal court in Maryland.  The passenger in the rear of the vehicle was the main witness against both — but the passenger was not the only evidence, as there was much more introduced at the trials.  Both were convicted.

Much has been made of the fact that the defendant who actually shot the three women was sentenced to life in prison without parole, while Higgs was sentenced to death.  But that was not a choice made by the government — it was the result of the verdicts of the two juries.   The jury for the shooter convicted him on all counts but was not unanimous on the question of whether the death penalty should be imposed.  By law, without a unanimous jury recommendation, the trial judge could not impose the death penalty.

Higgs’ jury convicted him on all counts. After considering both the aggravating and mitigating evidence Higgs’ jury did unanimously recommend the death penalty.  I’m not going to recount it here, but the appellate court decision upholding his conviction and sentence does go into the factual details on Higgs’ criminal history and other conduct that was relevant to the jury’s verdict.

But one interesting judgment made by the jury in its verdict was that it unanimously rejected the defense claim that there was an equally culpable defendant in the murders who was not sentenced to death.  Higgs’ jury knew that the co-defendant had shot the three women while Higgs remained in the car, and the jury knew that the co-defendant was not sentenced to death.  But based on all the evidence presented to them, Higgs’ jury nevertheless found that Higgs lead the criminal activities and was most responsible for the murders, justifying his death sentence.

These are the details from a trial that you never see reported in the media.

Dustin Higgs was the 13th — and maybe last — federal inmate to have the death penalty carried out.  I doubt there are the votes in Congress right now to change federal law and eliminate the death penalty, but with the Democrats, in control of Congress, they are likely to try that if they can get such legislation passed.

Finally, six conservatives on the Supreme Court — including Chief Justice Roberts — took a deliberate and active role in not allowing the “machinery” of the federal appeals process to grind to a halt and prevent the carrying out of this sentence.  A last-minute gambit by the defense attorneys to halt the execution to consider two new issues raised by them was initially granted by a federal judge, and the execution was postponed on December 29.

Briefly stated — for those interested in the kind of legal hocus pocus that infects these cases in the final stages — federal law says that the method of execution to be employed in federal cases resulting in the death penalty shall be the method used in the state where the trial took place.  Back in 2001 when Higgs was sentenced, the Court’s Sentencing Order specified that the sentence would be carried out consistent with Maryland law since  Higgs’ crimes took place in Maryland.

But Maryland abolished the death penalty in state law in 2013.  In August 2020, DOJ sought to have the District Court in Maryland amend Higgs’ Judgment of Conviction to read that the sentence should be carried out consistent with the law in Indiana, where the Federal Penitentiary at Terra Haaute houses the federal “death house” and where Higgs was awaiting execution.  But the district court judge in Maryland ruled — on December 29 — that he lacked the authority to amend the conviction in the manner requested, and issued an order vacating Higgs’ execution date.  On January 13, 2021, pursuant to an emergency appeal by DOJ, the Fourth Circuit Court of Appeals issued an order setting the case for oral argument before the Court — on January 27, six days after the start of the Biden Administration.

DOJ filed an emergency petition with the Supreme Court “before judgment” of the Fourth Circuit — an extraordinarily rare step.  The emergency petition went to the Chief Justice, and he referred it to the entire Court. The six conservatives granted the petition.  They reversed the December 29 ruling of the Maryland District Court Judge vacating the execution date and remanded the case to the Fourth Circuit Court of Appeals with instructions that the Judgment of Conviction be amended to designate that the State of Indiana for purposes of specifying the method of execution. Higgs was put to death several hours later.