The Supreme Court on Tuesday night cleared the way for the execution of Lisa Montgomery, the first woman to be executed by the federal government in 68 years. Montgomery was convicted in 2008 of strangling Bobbie Jo Stinnett, a Missouri woman who was eight months pregnant, and extracting the premature baby to pass off as her own child.

In a series of brief, unsigned orders, the Supreme Court reversed a pair of rulings from federal appeals courts that had put Montgomery’s execution on hold, and it denied two other last-minute requests in which Montgomery argued she was entitled to a postponement. In two of the orders, the court’s three liberal justices indicated that they dissented and would not have allowed the execution to proceed.

Soon after the court issued its final late-night order, Montgomery was put to death by lethal injection at the federal execution facility in Terre Haute, Indiana. She was pronounced dead at 1:31 a.m.

Four separate cases relating to Montgomery’s execution reached the justices in emergency litigation over the past several days.

One case involved the meaning of the Federal Death Penalty Act, which requires that federal death sentences be implemented “in the manner prescribed by the law of the State in which the sentence is imposed.” Montgomery, who was sentenced in Missouri, argued that the Department of Justice failed to comply with a Missouri requirement that prisoners be given at least 90 days’ notice before an execution. The U.S. Court of Appeals for the District of Columbia Circuit granted Montgomery a stay of execution late on Monday night, saying she had raised an important and unsettled issue about the meaning of the FDPA.

The government filed an emergency appeal Tuesday morning at the Supreme Court, arguing that the FDPA requires only that the federal government follow a state’s general method of execution. The statute does not apply to a state’s procedural rules on issues like scheduling the execution date, the government told the justices. In a two-sentence order, the court lifted the D.C. Circuit’s stay. Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan indicated that they would have left the stay in place.

In a separate case, Montgomery argued that the 2008 judgment that imposed her death sentence contained a stay provision, and she said that stay was never lifted. The government countered that the provision was merely a way to preserve Montgomery’s right to appeal her conviction and was never intended to operate as an indefinite stay of her execution. The U.S. Court of Appeals for the 8th Circuit agreed with Montgomery on Tuesday afternoon, ordering a stay just a few hours before Montgomery’s scheduled 6 p.m. execution. The government appealed to the Supreme Court, which reversed the 8th Circuit and lifted the stay in an order issued around midnight. No justices noted a dissent from this order.

A third case involved whether Montgomery was ineligible for the death penalty due to mental illness. Montgomery’s attorneys argued that she had bipolar disorder, suffered intense hallucinations and continued to experience psychological effects of severe childhood sexual abuse. A district judge in Indiana found that Montgomery was entitled to a hearing on whether her current mental state rendered her incapable of understanding the government’s rationale for executing her. The district judge issued a stay of execution on Monday, but the U.S. Court of Appeals for the 7th Circuit quickly lifted that stay. Montgomery asked the Supreme Court to reinstate the stay, but in another brief midnight order, the court declined to do so. Breyer, Sotomayor and Kagan indicated that they would have granted a stay to allow a hearing on Montgomery’s mental state.

Finally, Montgomery argued in a fourth case that the Justice Department violated a federal regulation when it scheduled her execution. The government had initially set her execution for Dec. 8, but in November, a judge issued a stay after her attorneys contracted COVID-19. The stay was in effect through Dec. 31. On Nov. 23, while the stay was in place, the government rescheduled the execution for Jan. 12. Montgomery argued that the rescheduling violated 28 C.F.R. § 26.3(a)(1), which states, “If the date designated for execution passes by reason of a stay of execution, then a new date shall be designated promptly by the Director of the Federal Bureau of Prisons when the stay is lifted.”

Montgomery contended that, under the regulation, the Justice Department had to wait until after the stay expired before setting a new execution date. The government argued that the regulation imposes a duty to reschedule an execution if a stay expires but does not bar the government from rescheduling before the stay expires. The D.C. Circuit sided with the government, and the Supreme Court, with no noted dissents, turned down Montgomery’s appeal on the issue.

Montgomery was the first woman to be executed by the federal government since 1953. No other women are currently on federal death row.

Montgomery also became the 11th person to be put to death by the federal government since last July, when the Trump administration ended a 17-year moratorium on federal executions.

The Justice Department has scheduled two more executions in the waning days of the Trump administration. It wants to execute Corey Johnson on Thursday and Dustin Higgs on Friday, but both men recently tested positive for COVID-19, and a federal judge on Tuesday halted their executions based on a risk that lung damage associated with the virus could cause them to suffer severe pain during a lethal injection. President-elect Joe Biden opposes capital punishment.

Posted in Montgomery v. Rosen, Montgomery v. Rosen, Rosen v. Montgomery, Featured, Capital cases

Recommended Citation: James Romoser and Angie Gou, Reversing several lower courts, justices allow execution of Lisa Montgomery, SCOTUSblog (Jan. 13, 2021, 1:41 AM), https://www.scotusblog.com/2021/01/reversing-several-lower-courts-justices-allow-execution-of-lisa-montgomery/