One week before her client was scheduled to die in the federal execution chamber, capital defense attorney Kelley Henry shared a photograph with reporters assembled on a Zoom call. It showed an old trailer in a grassy field in Osage, Oklahoma. This was the spot where her client Lisa Montgomery was repeatedly raped as a child.
Henry had taken the photograph herself. It was an emblem of Montgomery’s harrowing life story. “We’ve described it as Lisa experiencing life like a horror movie growing up,” Henry said. “But what happened to Lisa was worse than a horror movie. Worse than anything you can imagine.”
Montgomery was convicted in 2007 for murdering a pregnant Kansas woman named Bobbie Jo Stinnett. She strangled her, then cut her open to abduct her unborn baby. Arrested in 2005, Montgomery was tried on federal charges and sentenced to die.
Despite her gruesome actions, there was an outpouring of support for Montgomery after her execution date was announced last fall. Media outlets detailed her history of mental illness as well as the extreme physical and psychological abuse she endured growing up, raped by her stepfather and trafficked by her mother. They described the shocking incompetence of her trial attorneys, who failed her at every turn. Today, more than 40 current and former prosecutors support Montgomery’s clemency petition, including some who have prosecuted women for similar crimes. “We know from first-hand experience that these crimes are inevitably the product of serious mental illness,” two of them wrote. “Women who commit such crimes also are likely to have been victimized themselves.”
Despite all this support, there is good reason to doubt that Montgomery’s life will be spared. Just before the press conference began on January 5, Henry and her colleagues received word that they had lost their latest appeal. Although they have called upon the president to be a “hero” by sparing Montgomery’s life, Donald Trump has thus far shown no compassion for those scheduled to die.
If the Department of Justice gets its way, Montgomery will be killed by lethal injection on January 12. Two days later, Corey Johnson is set to die, followed the next day by Dustin Higgs. Both Johnson and Higgs contracted Covid-19 in December — part of a severe outbreak in the Special Confinement Unit at the federal penitentiary in Terre Haute, Indiana. As the press conference about Montgomery wrapped up, lawyers for Johnson and Higgs were in an evidentiary hearing with a federal judge arguing that lung damage sustained by their clients heightened the risk that they would suffer a tortuous death.
If the three executions go through, Trump will have executed 13 people in the federal death chamber since July. It’s an astonishing body count, made even more unprecedented by the coronavirus pandemic, which has sickened countless people connected to the executions. The pandemic has put defense attorneys in an especially wretched position. Lawyers have been forced to choose between protecting their health and fulfilling their obligations to their clients. Henry and her co-counsel chose the latter last fall, traveling to see Montgomery after her date was announced, only to later test positive for Covid-19. Over protests from government prosecutors, a court granted a brief delay to allow them to recover in order to complete the clemency petition. But a new execution date was promptly set.
With Americans still reeling from the insurrection at the Capitol — and fearful of more violence as Trump’s term comes to an end — the final federal executions are likely absent from most people’s minds. A poll of registered voters found that, while there is significant opposition to the resumption of federal executions after a 17-year pause, 40 percent had heard “nothing at all” about the 10 executions carried out last year. For many of those who have tuned in, the push to kill so many people during a global pandemic is an emblem of Trumpism, the kind of cruelty and incompetence that has defined his presidency.
But it would be a mistake to write off the killing spree as yet another grim chapter of the Trump era. The federal executions have been possible thanks to a system that long predates Trump. The death machinery in Terre Haute — and the legal infrastructure that sustains it — is a bipartisan creation, animated by prosecutors and judges whose power has been derived from Democratic and Republican administrations alike. And while the killing season in Terre Haute may look like an aberration, it is part of a violent tradition that Americans have accepted for years.
With President-elect Joe Biden vowing to end the federal death penalty, the killing spree in Terre Haute will soon be over. But even if federal executions never resume, the death penalty remains active in the rest of the country. Lawyers like Henry, who represents people on Tennessee’s death row, will still have to fight for the lives of their clients this year, even if Montgomery is spared. If there is to be an honest reckoning over the excesses of this era, it must start by acknowledging that our worst cruelties did not begin or end with Trump — and that the systems that enabled him remain in place. The question is whether Americans are willing to do anything about it.
A History of Violence
In December, ProPublica published a story that provided a glimpse into Trump’s execution spree from inside the Justice Department. In their rush to kill, it explained, Attorney General William Barr and several enablers “trampled over an array of barriers, both legal and practical.” There were “middle-of-the-night killings,” a man “strapped to the gurney while lawyers worked to remove a court order,” and another who was executed despite a pending appeal.
The story laid out how the administration “bought drugs from a secret pharmacy that failed a quality test” and paid experts with questionable credentials for reports backing the government’s lethal injection protocol. Especially chilling to many, the U.S. Bureau of Prisons solicited private contractors to carry out the executions and paid them in cash.
The picture was certainly galling. It came on the heels of another revelation, that Trump planned to change federal rules to allow for older execution methods like the firing squad and electric chair. Yet for those who have seen how the death penalty operates for years, all of this was actually fairly familiar. In Missouri alone, not only did a man spend three hours on the gurney in 2005 before being killed in the dead of night, but several people have been executed over the last decade while their appeals were still pending. And for all the revulsion over Trump’s new execution rule, states have been seeking to revive old execution methods for years. In Tennessee, five of the last seven executions carried out since 2018 took place in the electric chair.
For more than a decade, death penalty states have gone to desperate, sometimes illegal lengths to carry out executions by lethal injection.
The maneuvering to find drugs for lethal injection — and the secrecy around it — was especially familiar. For more than a decade, death penalty states have gone to desperate, sometimes illegal lengths to carry out executions by lethal injection. Long before the Trump administration sought out the pentobarbital used to execute people in Terre Haute, states around the country had come to rely on sketchy suppliers. After a series of botched executions in 2010, death penalty lawyers traced the origins of one of the drugs to a British pharmaceutical wholesaler based in the back of a driving school. In 2015, BuzzFeed News tracked illegally imported lethal injection drugs to an office building in India. As states turned to largely unregulated compounding pharmacies on U.S. soil, providers of lethal injection drugs were exposed as having alarming track records. The supplier for Texas forged quality control documents. In Missouri, prison officials paid for drugs in cash from a pharmacy labeled “high risk” by the Food and Drug Administration.
In the meantime, the U.S. Supreme Court made it virtually impossible to challenge lethal injection even as states adopted hasty new formulas, swapping out substances with little notion as to whether they would work as intended. In 2015, the justices upheld a three-drug protocol using midazolam despite warnings from anesthesiologists that the drug, a sedative, did not have the properties needed to render a person insensate for the purpose of execution. The ruling also upheld the requirement that a condemned person who wished to challenge such a protocol had to propose a “known and available alternative” way to die.
In 2017, Arkansas Gov. Asa Hutchinson decided that the state needed to use up its supply of midazolam before it expired. Prosecutors and prison officials worked overtime to execute eight people in 11 days, with some scheduled to die on the same night. Litigation over the state’s protocol raised red flags. In a hearing prior to the first executions, Wendy Kelly, then head of the Arkansas Department of Corrections, testified that a different drug in the state’s three-drug protocol had been “donated” to her after she explained the payment process to the anonymous supplier. According to the Arkansas Times, “the supplier was worried about his or her identity being revealed to the public through the payment process.”
Only four of the eight executions in Arkansas went through in the end. But the last one was especially disturbing. Kenneth Williams coughed, convulsed, and lurched on the gurney, according to media witnesses, whose accounts were immediately dismissed by government officials. Although the litigation over lethal injection continued after the executions ended, there has been no reckoning over Williams’s disturbing death. One of the officials most responsible for carrying out the state’s execution spree, Arkansas Attorney General Leslie Rutledge, announced a run for governor last year.
There are other parallels between the killing spree in Arkansas and the executions in Terre Haute. As with those executed in the federal death chamber last year, lawyers for the condemned in Arkansas scrambled to file legal challenges and clemency petitions for their clients. They contained familiar red flags, from mental illness to childhood trauma to ineffective assistance at trial.
In March 2017, I attended the clemency hearing for Marcel Williams, who had raped and killed a young woman in Little Rock in 1994. Although his crimes were unquestionably horrific, they were also partly the product of a life warped by violence and sexual abuse. One clinical psychologist revealed that by the time Williams was 12, his mother was regularly selling his body in exchange for food stamps.
Attorneys for Williams failed to present such evidence during his sentencing trial. Before Williams was executed on April 24, 2017 — strapped to the gurney for more than an hour as the final litigation played out — one of the defense attorneys who represented him at trial told me that it was the first capital murder case he’d ever tried. His failure to present mitigating evidence was especially catastrophic. “I can’t say we even looked for it,” he said.
The Right to Take a Life
In the next day or two, if they have not already, the Bureau of Prisons will hand Lisa Montgomery over to the U.S. Marshals, who will fly her to Terre Haute for her execution. Her lawyers will not be told in advance. Nor is it clear how much of an understanding Montgomery will have of her fate. Attorneys have said she has decompensated in recent months. On Friday, her legal team filed a petition for a writ of habeas corpus in the Southern District of Indiana arguing that she is not competent to be executed due to “co-morbid conditions of serious mental illness, neurological impairment, and complex trauma.”
Although the federal government has not executed a woman since the 1950s, such executions are not quite as rare as they might seem. Sixteen women have been killed in state death chambers since the “modern” death penalty era began in 1976. Although many of the executions raised controversy, the politicians most responsible have suffered few consequences, even when their behavior has been callous and cruel. Before he became an ex-president looked upon with nostalgia by many Trump critics, George W. Bush mocked Karla Faye Tucker following her execution in 1998.
Those who carry out executions do not necessarily remain anonymous forever. Years after Tucker’s execution, documentary filmmaker Werner Herzog interviewed the veteran captain of the execution team in Texas responsible for killing her. Her execution had been no different from any of the others, the man said, yet he found himself shaking afterward.
“And then I started actually visualizing the other inmates,” he said. “I could actually see them in the holding cell again. One right after another.” He realized he could not carry out executions anymore. “From that point on, I’ve had a different outlook in life. … After Karla Faye and after all this … no sir. Nobody has the right to take another life. I don’t care if it’s the law. And it’s so easy to change the law.”
Correction: Jan. 10, 2021, 2:20 p.m. ET
A previous version of this article incorrectly stated that only 13 percent of registered voters were aware that federal executions had resumed, according to a December poll. It has been updated to reflect that 40 percent of registered voters had heard “nothing at all” about the executions.