Execution of only woman on federal death row delayed

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A ruling by a federal judge to delay the execution of the only woman on federal death row could push the new date into the early days of the administration of the president-elect, Joe Biden, who has said he would work to end federal capital punishment.

The woman, Lisa Montgomery, had been scheduled to be executed on 8 December, but that date was delayed after two of her lawyers tested positive for the coronavirus shortly after travelling to a federal prison in Texas to visit her in November.

Should Montgomery’s life be spared as a result of the series of delays caused by the infection of her lawyers, it would be a rare reprieve for a prisoner from a virus that has swept through prisons, infecting inmates crammed into shared spaces.

If the Department of Justice appeals the decision, however, a higher court would most likely overturn it. Since the Supreme Court paved the way for federal executions to proceed in June after a 17-year hiatus, the justices have been largely unreceptive to requests for reprieve from federal inmates scheduled for execution.

The Justice Department had rescheduled her execution for 12 January, but Judge Randolph Moss of the US District Court for the District of Columbia ruled on Thursday that the January execution date had been unlawfully rescheduled because a stay order, which was issued on account of her lawyers’ illnesses, was still in effect.

Montgomery, of Melvern, Kansas, was convicted in 2008 of killing Bobbie Jo Stinnett, who was 23 years old and eight months pregnant at the time, and cutting a baby from her abdomen.

She tried to pass off Stinnett’s baby as her own before admitting to the crime. A jury in federal court in Missouri convicted her of kidnapping resulting in death.

Montgomery’s lawyers have said that she has severe mental illness, which was inherited from both of her parents and worsened by the abuse she endured as a child, including being sex-trafficked by her mother and gang-raped by men.

Federal execution rules state that a prisoner will receive notice of his or her execution date at least 20 days in advance. However, when the rescheduled date is fewer than 20 days from the earlier execution date, the prisoner must be notified only “as soon as possible”.

The stay in Montgomery’s case barred the government from executing her before 31 December. How long the government will wait to execute her after that point remains unclear. Once Mr Biden is sworn in on 20 January, the chances of Montgomery’s execution would become increasingly unlikely.

Representatives for Mr Biden did not immediately respond to a request for comment about whether he would intervene in Montgomery’s case should her execution fall under his purview. A spokesperson for the president-elect told The Associated Press that Mr Biden “opposes the death penalty now and in the future”.

If Montgomery is executed, it would be the first federal execution of a woman since 1953, when Bonnie Heady was killed in a gas chamber for the kidnapping and murder of a 6-year-old boy in Kansas City, Missouri. The Trump administration resumed federal executions in July for the first time since 2003.

It would be “legally questionable” to execute Montgomery before 20 January, said Robert Dunham, executive director of the Death Penalty Information Centre in Washington.

However, because of the Trump administration’s legal strategy of forcing “the courts to decide without adequate review”, Mr Dunham said, “it’s anybody’s guess what this administration will attempt to do now”.

The Justice Department did not immediately respond to a request for comment.

The logistical challenges of executions could also push Montgomery’s execution further into Mr Biden’s presidency. She would need to be flown from Texas to the Federal Correctional Complex in Terre Haute, Indiana, to face capital punishment. Executions also require a crew of dozens of workers, which was why Montgomery’s death had been planned for the same week as two other inmates on death row.

The coronavirus has also introduced new problems for federal executions. There has been an outbreak at the Terre Haute complex, where at least 14 of the approximately 50 men on death row have tested positive. 

The Justice Department is facing a lawsuit from inmates at the Federal Correctional Complex that alleges the executions – which bring workers, witnesses, lawyers and media personnel to the centre — could expose them to the virus.

Montgomery has not tested positive for the coronavirus. The two inmates who are set to be executed during the same week as her in January – Corey Johnson and Dustin John Higgs – have tested positive for the virus. Their lawyers are seeking to delay their executions because of their infections.

© New York Times