Sotomayor dissents to latest federal execution, calling it ‘justice on the fly’

Supreme Court Justice Sonia Sotomayor issued a sharp rebuke of the court’s decision to clear the way for a federal execution on Friday, panning what she described as “justice on the fly.”

Sotomayor joined others from the court’s liberal wing in opposition to a brief, unsigned order from the majority-conservative court that paved the way for executing Dustin Higgs.

Higgs early Saturday became the 13th person executed by the Trump administration in the past six months after the federal government resumed capital punishment last summer.

Before the execution, Higgs’s lawyers argued to the Supreme Court that the execution should be postponed because Higgs had contracted the coronavirus.

The lawyers argued that the damage done to Higgs’s lungs from the virus would make the lethal injection unjustly painful. Sotomayor noted that a district court agreed with the lawyers.

In her dissent, Sotomayor listed the people who have been executed since July while criticizing what she called an “unprecedented rush of federal executions” that she said ignored valid legal claims.

“The Court has even intervened to lift stays of execution that lower courts put in place, thereby ensuring those prisoners’ challenges would never receive a meaningful airing,” she wrote.

“The Court made these weighty decisions in response to emergency applications, with little opportunity for proper briefing and consideration, often in just a few short days or even hours. Very few of these decisions offered any public explanation for their rationale,” she continued.

She added, “This is not justice. 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.”

Justice Stephen Breyer also dissented. Justice Elena Kagan indicated she would have denied the petition, though did not sign on to either dissent.

“The Fourth Circuit issued a stay of the execution and has not yet resolved the Government’s appeal. It is rare for us to consider a question before the Circuit has decided it. And I would not depart from ordinary practice here. Consequently, I dissent,” Breyer wrote in his dissent.

The Trump administration resumed executions last year for the first time in 17 years, with Sotomayor noting that the federal government has now executed “more than three times as many people in the last six months than it had in the previous six decades.”

Higgs was sentenced to death in 2001 for the kidnapping and killing of three people in 1996. According to trial testimony, he led three girls to his apartment and then drove them to the Patuxent National Wildlife Refuge, where he ordered a friend to shoot and kill all three of them.

“I’d like to say I am an innocent man,” Higgs said in his final statement before being executed Saturday morning. “I did not order the murders.”

Sotomayor continued to criticize the pace of executions in her dissent.

“Over the past six months, this Court has repeatedly sidestepped its usual deliberative processes, often at the Government’s request, allowing it to push forward with an unprecedented, breakneck timetable of executions,” she wrote.