MCN: The administration’s six month reign of death

Matthew T. Mangino
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January 15, 2021

Only five states carried out a total of seven executions across the United States last year. That is the fewest state executions in nearly 40 years. However, that is not the full story when it comes to the death penalty in America.

In the second half of 2020, in the midst of a pandemic and a reelection campaign, the Trump Administration decided to get back into the act of executing federal prisoners. After going 17 years without carrying out an execution the federal government carried out 10 executions in less than six months.

By the end of 2020, the federal government had conducted more executions in five months than any other presidency since the turn of the 20th century, and scheduled more executions during a presidential transition period than any other administration in the history of the United States - knowing President-elect Joe Biden campaigned on abolishing the federal death penalty.

Whether it was a ploy to bolster his tough guy bona fides or a lowbrow pitch to his “law and order” constituency, President Donald Trump’s bloodlust saw no boundary.

According to the Death Penalty Information Center, those executed by the federal government included the first Native American ever executed by the federal government for the murder of a member of his own tribe on tribal lands.

This fall saw the first federal execution in 68 years of an offender who was a teenager at the time the crime was committed.

The federal executions of 2020 included the first federal execution in 57 years for a crime committed in a state that had abolished the death penalty, as well as executions carried out against the wishes of the victims’ families and the first lame-duck executions in more than a century.

The executions carried out in the midst of a pandemic contributed to a COVID-19 outbreak in the Federal Correctional Complex in Terre Haute, Indiana. The outbreak infected at least nine members of federal execution teams, several lawyers and at least one religious advisor.

As the president faces an unprecedented second impeachment trial - his machinery of death keeps chugging along. This week, after the president incited his “law and order” supporters to storm the Capitol resulting in the death of five people, including a Capitol Hill police officer, Lisa Montgomery was executed. She was the first woman executed in the federal system in nearly seven decades.

Montgomery committed a very heinous crime. In 2004, she cut an unborn fetus from the womb of her mother. Montgomery had faked a pregnancy. She drove from her home in Kansas to the victim’s home in Missouri. After strangling Bobbi Stinnett, whom she knew from dog breeding, Montgomery cut open her abdomen and kidnapped her fetus. Fetal abduction is rare, but more than 25 cases of violent fetal abductions have occurred in the last two decades.

According to NBC News, Montgomery’s lawyers did not argue that she didn’t deserve to be punished, but rather that the jury never fully learned of her severe mental illnesses as diagnosed by doctors.

Corey Johnson was executed two days after Montgomery. Johnson had an IQ of 69 and had contracted COVID-19.

With only days left in his “reign,” Trump has one more execution planned. A U.S. Circuit Court recently cleared the way for the execution to move forward. The court overturned a stay from a lower court delaying the execution until March to allow Dustin Higgs to recover from COVID-19.

Higgs could dodge the executioner’s needle but-for the wishes of a disgraced president who on his last days in office would rather inflict death than impart mercy.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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Capital-Star: Congress shouldn’t stop with Trump in applying the 14th Amendment

Matthew T. Mangino
Pennsylvania Capital-Star
January 15, 2021

The 14th Amendment to the United State Constitution has been proposed as a means to disqualify President Donald Trump from running for a second term.

Section Three was cited in the article resulting in the Presidents second impeachment. The articles alleges that Trump disqualified himself from office by inciting his followers to violently obstruct the congressional certification of President-elect Joe Biden’s victory.

The history of disqualification from public office goes back to the earliest years of the republic. In 1861, Sen. John C. Breckinridge of Kentucky was expelled from the United States Senate. The resolution, which passed unanimously, declared Breckinridge “has joined the enemies of his country, and is now in arms against the government he had sworn to support.”

Between 1856 and 1860 Breckinridge was a heartbeat away from being president of the United States.  He was President James Buchanan’s Vice-President. Within months of being elected to the U.S. Senate he was a general in the Confederate army.

Following the Civil War, in what some have called the second Constitution, the Congress passed, and the states ratified, the 13th, 14th and 15th Amendments to the Constitution. The Reconstruction Amendments were meant to abolish slavery, lessen the power of states and extend the right to vote to all former slaves.

The 14th Amendment is best known for the Equal Protection Clause which made the Bill of Rights applicable to the states and set in motion a plethora of Supreme Court decisions defining the rights of those accused of a crime.

The 14th Amendment has another, lesser known, rarely used, provision that in light of the Capitol insurrection, may have renewed relevance.

Section Three of the amendment was enacted to prevent Confederate officials who had served in the Unites States government or armed forces before the Civil War from regaining a position of authority in the post-bellum government. Former Confederates were barred until 1872 when Congress granted amnesty to civil and military officials of the Confederacy.

If Section Three is good enough to impeach the president why not use it to expel senators or house members who helped incite the Capitol insurrection?

Section Three provides, “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who . . . shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

According to the St. Louis Post-Dispatch, U.S. Rep. Cori Bush, D-Mo., introduced a resolution in the House with 47 co-sponsors directing the House Ethics Committee to commence a review of more than 100 Republicans who voted to overturn the election results to see if they should be censured or expelled.

There have been calls for U.S. Sens. Josh Hawley, R-Mo., and Ted Cruz, R-Texas, to resign for their role in the Capitol insurrection.

Hawley was the first senator to say he would object to the certification of November’s election, based on patently false accusations that the presidential election was stolen. Hawley and Cruz led a group of Senate Republicans who helped Trump turn what is normally a routine certification vote into an attack on democracy. Even after the insurrection, Hawley, Cruz and four other senators continued to object to the certification.

U.S. Sen. Sherrod Brown, D-Ohio, has called for Cruz’s and Hawley’s resignation, saying they “betrayed their oaths of office and abetted a violent insurrection on our democracy.”

According to the HuffPost, Brown said, “If they do not resign, the Senate must expel them.”

U.S. Sen. Sheldon Whitehouse, D-R.I., also has called for an ethics investigation to consider expulsion of Cruz and Hawley.

Inciting, or actively participating in, an insurrection must have consequences.  A two-thirds majority of the House or Senate can insure that no one in Congress is above the law.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, in New Castle, Pa. He is the author of The Executioner’s Toll, 2010. His weekly syndicated column is distributed by GateHouse Media. Readers may contact him at www.mattmangino.com and follow him on Twitter @MatthewTMangino. His work appears occasionally on the Capital-Star’s Commentary Page. 

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Federal government executes 13th inmate is six months

The 3rd Execution of 2021

The U.S. government has executed Dustin Higgs, the last prisoner executed during the Trump administration, and the 13th in the space of six months, reported NPR.

The Supreme Court declined to stop the execution, although some justices dissented, noting that before the first of the 13, it had been 17 years since a federal execution had been carried out.

Justice Sonya Sotomayor called it an "unprecedented rush," saying that "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."

Higgs, along with two other men, killed three women in 1996, with one of the men, Willis Haynes, actually pulling the trigger. Haynes pleaded guilty and was sentenced to life in prison. Higgs was found guilty in 2000 of multiple federal offenses including first-degree premeditated murder, three counts of first-degree felony murder, and three counts of kidnapping resulting in death.

The crimes were carried out in Maryland which has since dropped the death penalty. Higgs was executed at the federal penitentiary in Terre Haute, Ind., and was pronounced dead at 1:23 a.m., according to the Associated Press.

In a statement following the execution, Shawn Nolan, an attorney for Higgs, called him "a fine man, a terrific father, brother, and nephew" who "spent decades on death row in solitary confinement helping others around him, while working tirelessly to fight his unjust convictions."

"There was no reason to kill him, particularly during the pandemic and when he, himself, was sick with Covid that he contracted because of these irresponsible, super-spreader executions," Nolan added.

Higgs had told the court that carrying out the sentence after his COVID-19 infection would be cruel because the resulting lung damage would cause a lethal injection of pentobarbitol to give him the sensation of drowning. 

Corey Johnson, 52, was executed Thursday night. He had also contracted COVID-19 while in prison, and his attorney argued that executing him following the infection would have been "cruel and unusual punishment."

Lisa Montgomery was executed early Wednesday. She was the only woman on federal death row and the first female prisoner to be put to death by the U.S. government since 1953.

The executions come days before the inauguration of President-elect Joe Biden, who has opposed the federal death penalty. On Monday, Senate Democrats unveiled legislation that would abolish it.

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Virginia prosecutors call for abolition of death penalty

Virginia prosecutors and advocates recently came together to call on legislators to abolish the death penalty in Virginia, according to a press release from the Virginia Interfaith Center for Public Policy. 

Three former Attorneys General and eleven Commonwealth’s Attorneys as well as other former prosecutors recently signed a letter to the General Assembly expressing their support for the abolition of the death penalty in the Commonwealth. 

Their message: The death penalty is a failed government program. When the modern-day death penalty era began in 1976, lawmakers and prosecutors envisioned a severe and consistent punishment that would keep the public safe. That has not happened. During this press conference, prosecutors will express their concerns that justify repeal, including biased application, cost and ineffectiveness, and limited proof that the death penalty deters criminal behavior. 

“The number of elected prosecutors supporting repeal of the death penalty is surging across the country. While the reasons cited by prosecutors are many, there is an acknowledgement that ending the death penalty is imperative in a country grappling with racism in the legal system,” said Sarah Craft, Death Penalty Program Director at Equal Justice USA. 

Prosecutors will also address a more cost-effective, constitutional way to respond to the most heinous crimes: a sentence of life in prison without the possibility of parole. Life without parole sentences help preserve limited resources, give more closure to victims' families, and leave the opportunity to free the wrongfully convicted.

Trump administration carries out another execution

The 2nd Execution of 2021

Corey Johnson was executed by lethal injection at the Federal Correctional Complex in Terre Haute, Indiana, and was pronounced dead at 11:34 p.m. ET on January 15, 2021, reported CNN.

Johnson was sentenced to die after he was convicted of killing seven people in 1992 as a part of the drug trade in Virginia. The weeks preceding his execution were defined by a tense legal battle after he contracted Covid-19 while on death row.

In his final statement, Johnson apologized for his crimes and told the families of the victims that he hoped they would find peace. He also thanked the staff at the prison, the prison's chaplain, his minister and his legal team.

"I would have said I was sorry before, but I didn't know how. I hope you will find peace," he said, according to a statement released by his lawyers. "To my family, I have always loved you, and your love has made me real. On the streets, I was looking for shortcuts, I had some good role models, I was side tracking, I was blind and stupid. I am not the same man that I was."

The Supreme Court denied a last-ditch effort late Thursday by Johnson's legal team that leaned on claims of an intellectual disability and his Covid-19 diagnosis, arguing that his infection paired with a lethal injection would amount to a cruel and unusual punishment.

That appeal came after an appellate court on Wednesday tossed out a lower court's decision to stay the executions of Johnson and another death row inmate who contracted the virus, Dustin Higgs, whose execution is scheduled to take place Friday.

"The government must stop trying to execute Corey Johnson while he is still recovering from the COVID-19 infection he contracted as a result of the government's own irresponsibility in carrying out executions during the pandemic," Donald Salzman, an attorney for Johnson, had said in a statement earlier Thursday.

"There is no principled reason not to wait until the injunction expires in March to assess whether Mr. Johnson's lungs have healed sufficiently that he will not suffer excruciating pain during an execution."

After Johnson's death, his legal team mourned his passing in a statement, saying that he should never have been executed.

"We loved Corey Johnson, and we knew him as a gentle soul who never broke a rule in prison and kept trying, despite his limitations, to pass the GED. His family and loved ones are in our hearts," his attorneys said. "We wish also to say that the fact Corey Johnson should never have been executed cannot diminish the pain and loss experienced by the families of the victims in this case. We wish them peace and healing."

Johnson's legal team has also said that he has an IQ of 69, which would be lower than one standard offered by the Supreme Court as a guide for states weighing whether such an execution met the Constitution's cruel and unusual punishment standards.

"He is a person with intellectual disability who cannot constitutionally be executed," Salzman argued Thursday morning. "The government should withdraw Corey's execution date, or President Trump should grant him clemency."

According to the US Justice Department, Johnson and several co-conspirators were partners between 1989 and 1992 in a "large drug-trafficking conspiracy" based in Richmond, Virginia.

As part of their operation, the department said, Johnson murdered seven people over "perceived slights or rivalry in the drug trade" -- Peyton Johnson, Louis Johnson, Bobby Long, Dorothy Armstrong, Anthony Carter, Linwood Chiles and Curtis Thorne. Johnson said each name in his final statement, saying, "I want these names to be remembered."

Johnson was found guilty of seven counts of capital murder in 1993, with the US District Court for the Eastern District of Virginia jury unanimously recommending seven death sentences.

Thursday's execution, six days before President-elect Joe Biden takes office, coincides with a new push from more than three dozen members of Congress for Biden's incoming administration to prioritize abolishing the death penalty in all jurisdictions.

While Biden has pledged to abolish the federal death penalty and to give incentives to states to stop seeking death sentences as a part of his criminal justice plan, 40 members of Congress want to make sure the practice ends on his first day in office.

As part of his final words, Johnson made mention of his last meal.

"The pizza and strawberry shake were wonderful, but I didn't get the jelly-filled donuts that I ordered," he said. "What's with that? This should be fixed."

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PA legislature one step closer to regionalizing appellate courts

A Pennsylvania legislative panel narrowly approved a proposal to amend the state Constitution to elect state appeals court judges by zone, a movement largely motivated by Republicans’ anger over recent rulings from the Democratic-majority state Supreme Court, reported The Associated Press.

The House Judiciary vote was 13-12, with two GOP members joining Democrats against the effort designed to swing control of the state Supreme Court, where Democrats now hold a 5-2 majority.

The full Republican-majority House can now consider it. Pennsylvania governors can’t veto constitutional amendments.

The judicial districts would also apply to Superior and Commonwealth courts, which have Republican majorities, but the proposed amendment leaves many of the details to the Legislature to iron out. Those details include how the district lines would be drawn and what will happen to the incumbent judges before or once their current terms expire.

Rep. David Millard, R-Columbia, said he was supportive in part because there have been few appellate judges elected in the rural, less populated portion of the state north of Interstate 80, calling that “a red flag to me that this bill has a lot of merit to it.”

“They’re not supposed to be representing geographical ideologies,” argued the ranking Democrat on the committee, Montgomery County Rep. Tim Briggs. “They’re supposed to be looking at a statewide jurisdiction and interpreting the laws that we pass.”

Democrats lost an effort to have the committee hold a public hearing on the legislation.

Allegheny County Rep. Natalie Mihalek, a Republican, said she was against the proposal, saying it would increase the partisanship of appellate judges rather than elevate those with the right temperament, experience and legal skills.

“I think this is a time when we should be abandoning the practice of politicizing our bench,” she said.

Supporters say that among the 31 Supreme, Superior and Commonwealth court seats, one judge and one justice currently live in the northern part of Pennsylvania.

Of the five Democrats on the state Supreme Court, one is from Philadelphia and four are from the Pittsburgh area. A Republican is from Tioga County, while Chief Justice Thomas Saylor, a Republican who is retiring at the end of the year, lives near Harrisburg.

The Judiciary Committee also advanced to the House floor a constitutional amendment that would temporarily permit lawsuits over child sexual abuse that occurred many years ago. It voted 14-1 to allow a two-year “window” during which people could file civil lawsuits outside the statute of limitations that existed at the time they were victimized.

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Federal government carries out first execution of a woman in nearly 70 years

The 1st Execution of 2021

Lisa Montgomery, 52, was executed by lethal injection at the Federal Correctional Complex in Terre Haute, Indiana, and pronounced dead at 1:31 a.m. January 13, 2021, according to CNN.

Montgomery was the first woman to be executed by the federal government since 1953 and was the only woman on death row.

The Supreme Court denied a last-ditch effort late Tuesday by her defense attorneys who argued that she should have been given a competency hearing to prove her severe mental illness, which would have made her ineligible for the death penalty.

She was the 11th federal death row inmate to be executed by the Trump administration after a 17-year hiatus in federal executions.

"The government stopped at nothing in its zeal to kill this damaged and delusional woman," her attorney, Kelley Henry, said in a statement. "Lisa Montgomery's execution was far from justice."

Montgomery's attorneys, family and supporters had pleaded with President Donald Trump to read their clemency petition and make an executive decision to commute her sentence to life without the possibility of parole.

Montgomery was sentenced to death in 2008 by a Missouri jury for the 2004 murder of a pregnant woman, cutting the fetus out and kidnapping it. The baby survived.

A federal judge granted Montgomery a stay of execution Tuesday for a competency hearing -- just hours before she was scheduled to be executed.

"The Court was right to put a stop to Lisa Montgomery's execution," Henry said in a statement. "As the court found, Mrs. Montgomery 'made a strong showing' of her current incompetence to be executed. Mrs. Montgomery has brain damage and severe mental illness that was exacerbated by the lifetime of sexual torture she suffered at the hands of caretakers."

"The Eighth Amendment prohibits the execution of people like Mrs. Montgomery who, due to their severe mental illness or brain damage, do not understand the basis for their executions. Mrs. Montgomery is mentally deteriorating, and we are seeking an opportunity to prove her incompetence," Henry added.

But the Supreme Court denied the effort and pleas to President Trump were unsuccessful.

Two more executions are scheduled this week, for Corey Johnson on Thursday and Dustin Higgs on Friday. Both of their executions have been halted by a federal court judge as the men are still recovering from Covid-19. Prosecutors intend to appeal the ruling on Higgs and Johnson, according to court documents.

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