A federal judge in Washington said Tuesday that she will rule soon on a motion to delay the federal executions of Cory Johnson and Dustin Higgs set for Jan. 14 and 15, respectively, on the grounds it would constitute cruel and unusual punishment.
The government plans to execute Johnson, 52, and Higgs, 48, who both have COVID-19, by lethal injection using pentobarbitol, which their lawyers contend would cause “flash pulmonary edema,” resulting in “needless and excruciating pain” due to lung damage from the virus.
“Your Honor, because of Mr. Johnson’s and Mr. Higgs’ COVID diagnoses, the lethal injection protocol is essentially going to waterboard them to death. Being waterboarded to death violates the Eighth Amendment,” Alexander Kursman, a lawyer for the men, told U.S. District Judge Tonya S. Chutkan on Tuesday.
Johnson was sentenced to death for seven murders in Richmond in 1992 while he was a member of the so-called Newtowne gang that claimed at least 11 lives during a 45-day period. Higgs was sentenced to death for the 1996 kidnapping and murder of three women in Maryland.
Experts on each side gave Chutkan conflicting opinions about the current health and conditions of the men and the effects of the drug used in executions in telephonic testimony this week and/or in declarations.
Lawyers for Johnson and Higgs are asking for a delay of execution until they fully recover from the virus. A delay would likely go beyond Jan. 20 when President Donald Trump leaves office and President-elect Joe Biden, who opposes capital punishment, is inaugurated.
If no delay is possible, they are asking that some sort of analgesic also be administered or even that a firing squad be used instead of lethal injection.
Dr. Gail A. Van Norman, with the department of anesthesiology at the University of Washington Medical Center, testified Tuesday on behalf of the inmates.
She explained that “flash pulmonary edema is a form of drowning. What happens is the spaces in the lungs that normally contain air will rapidly fill with ... a fluid, a very thick fluid.”
“There’s a sensation of suffocation and drowning and air hunger that occurs virtually immediately,” she added.
Kursman argued that their experts showed that it was likely that while they are still conscious, “Mr. Johnson and Mr. Higgs will be drowning in their own fluids.”
“Even if at some point before that the pentobarbitol renders Mr. Higgs and Mr. Johnson insensate, which we dispute, they will still suffer the horrifying and terrorizing sensation of drowning for minutes before their deaths,” he argued.
“This isn’t speculation, Your Honor, it’s sure or very likely to occur and it is backed by science,” Kursman asserted.
Jean Lin, a lawyer with the U.S. Department of Justice, told the judge the government opposes all of the plaintiffs’ requests. She said that in order to win a preliminary injunction, Johnson and Higgs would have to show they would likely ultimately succeed in the Eighth Amendment claim.
“The plaintiffs have to show that protocol is very likely to cause serious illness and needless suffering,” Lin argued. In response to a question from Chutkan, Lin said the proposals offered by the two men “are not going to likely significantly reduce the risk of severe pain.”
The judge interrupted Lin at one point, asking: “Are you saying you think it doesn’t matter whether you execute these individuals when they are still suffering from COVID, or when they’ve recovered?”
“I mean, doesn’t that seem logical, that it would be less suffering when they are no longer suffering from COVID symptoms?” Chutkan asked.
“We’re talking nine days from today. I’m not understanding that it makes no difference whether you execute a man who is suffering from COVID, or isn’t suffering from COVID, as far as pain or suffering goes,” the judge said.
Lin said the government concedes that Johnson and Higgs have COVID-19 and are displaying symptoms. But, she said, the governments’ experts agree and have shown that the symptoms are not clinically significant.
“The bottom-line issue before the court is whether these inmates are going to suffer pulmonary edema while sensate and we still don’t think that that has been established just because someone has been diagnosed with COVID and has mild symptoms,” Lin argued.
She said, “To answer Your Honor’s question, ‘Why don’t we just wait?’ If they are in fact lung-damaged, then that’s a whole separate question. But our position remains that’s simple and pure speculation on the plaintiffs’ part that there in fact is lung damage.”
In any case, Lin said, the bottom line is that pentobarbitol “is going to render them insensate so fast” it will not matter. The government does not want to inflict undue suffering and that is why the drug is used, she said.
“The government does not believe that the postponements of the executions are called for,” Lin said.
At the conclusion of the hearing on Tuesday, Chutkan said, “I will try and get a ruling out as soon as I can.”