A federal judge in Washington has granted a stay of execution to two federal death row inmates scheduled to die this week.
U.S. District Judge Tanya S. Chutkan held that executing Cory Johnson on Thursday and Dustin Higgs on Friday — before they recovered from COVID-19 — would result in a sensation of drowning akin to waterboarding and violate the Eighth Amendment protection against cruel and unusual punishment.
“Because the public is greatly served by attempting to ensure that the most serious punishment is imposed in a manner consistent with our Constitution, the court finds that it is in the public interest to issue a preliminary injunction,” concluded Chutkan’s 31-page opinion.
The injunction is good until March 16 when she wrote that she would evaluate whether to extend the injunction in light of any new medical evidence.
The government gave notice Tuesday afternoon that it will be filing an appeal with the District of Columbia Court of Appeals.
Johnson, 52, was sentenced to death by a federal jury for the murder of seven people in Richmond in 1992 while he was a member of the Newtowne drug gang. Higgs, 48, was sentenced to death in federal court in Maryland for the murders of three women.
After a 17-year pause, the federal government resumed executions last year, carrying out 10. Johnson and Higgs would be executed not long before President Donald Trump leaves office and President-elect Joe Biden, who opposes capital punishment, begins his administration.
At a hearing last week, lawyers for Higgs and Johnson argued that lethal injection using pentobarbital, as planned, would cause “flash pulmonary edema,” resulting in needless and excruciating pain due to lung damage from the virus.
Alexander Kursman, a lawyer for the men, told Chutkan last Tuesday that “the lethal injection protocol is essentially going to waterboard them to death. Being waterboarded to death violates the Eighth Amendment.”
Declarations and testimony from experts presented by the two men and the government conflicted. Johnson and Higgs’ lawyers asked the judge to delay the execution so they could recover from COVID-19.
In a statement Tuesday, Donald Salzman, an attorney for Johnson, said, “Johnson contracted COVID-19 as a result of the government’s rush to carry out executions during the pandemic.” The federal death row is in Terre Haute, Ind.
“The district court correctly ruled that the government may not put [Johnson] at risk of suffering the excruciating pain of flash pulmonary edema as a result of the disease the government itself exposed him to,” Salzman said.
Higgs’ lawyer, Shawn Nolan, said that “given the widespread COVID outbreak on the federal death row and in the larger Terre Haute community, the government should stop its efforts to carry out Dustin’s execution during this raging pandemic.”