Federal appeals court overturns stay on two executions delayed by COVID-19 and constitutional concerns

The US Court of Appeals ruled Wednesday that the execution of two men on federal death row would go forward this week, overturning a stay that would have delayed their executions until mid-March.

Corey Johnson and Dustin Higgs, the men scheduled for execution, were both diagnosed with COVID-19 in mid-December. They requested a preliminary injunction postponing their sentences until they could recover. They claimed that the side effects of pentobarbital, the drug administered to cause death, interacting with “severe lung damage” from COVID-19 could cause a flash pulmonary edema before they lost consciousness. Johnson and Higgs argued that this would be cruel and unusual punishment—a violation of their Eighth Amendment rights.

Before the Court of Appeals ruling, a district judge on Tuesday delayed their executions, finding that the effects of COVID-19 mixed with the lethal injection cocktail would cause a sensation “akin to waterboarding.” However, on Wednesday night a panel of three Court of Appeals judges ordered that Johnson and Higgs’ executions would take place despite the constitutional and COVID-19 concerns.

Earlier executions have spurred outbreaks at the Terre Haute facility where federal death row prisoners are held. Lisa Montgomery, who was executed earlier this week, had her sentence stayed because her lawyers contracted COVID-19 while visiting her and did not have time to file a clemency petition. That stay was also overturned.

Another recent lawsuit on behalf of death row prisoners claimed that COVID-19 cases rose from four to 400 in the six weeks following Orland Hall’s November 19 execution. In response, the court mandated new restrictions to prevent the spread but refused their request to postpone all upcoming executions “until the threat of the COVID-19 pandemic has passed and Plaintiffs and members of the Class have received an appropriate vaccine.”

Johnson was set to be executed on Thursday and Higgs’ execution is set for Friday. Their lawyers filed for an en banc rehearing on Thursday morning.