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Supreme Court of The United States: Reyer
Supreme Court of The United States: Reyer
____ (2021) 1
I
The Government will execute Dustin Higgs tonight. In
2001, the United States District Court for the District of
Maryland sentenced Higgs to death for his involvement in
the kidnapping and killing of three people. The FDPA re-
quires that a federal death sentence be “implement[ed]” “in
the manner prescribed by the law of the State in which the
sentence is imposed.” 18 U. S. C. §3596(a). If that State
does not allow the death penalty, the FDPA directs courts
to designate an alternate State that does. Executions were
legal in Maryland in 2001, so the District Court’s Judgment
and Order did not designate an alternate State. See App.
to Pet. for Cert. 18a–21a. Maryland has since abolished the
death penalty, however, so the Government cannot imple-
ment the death sentence in accordance with Maryland law
as the FDPA requires.
In August 2020, the Government asked the District Court
to amend its Judgment and Order to designate Indiana,
where Higgs and all other federal death-row prisoners are
imprisoned, as the alternate State. Consistent with its cur-
rent practice, the Government set an execution date before
the District Court could rule. The District Court denied the
Government’s motion, holding that the court had no author-
ity to modify its original judgment. See 2020 WL 7707165,
*4 (D Md., Dec. 29, 2020) (“The Government’s initial, ex-
traordinary request that the Court amend its original judg-
ment and sentence is something that the Court plainly can-
not do”). The Government appealed to the Court of Appeals
for the Fourth Circuit, which scheduled oral argument for
January 27, 2021. Unwilling to wait, the Government asks
this Court to grant certiorari and summarily reverse the
District Court without normal briefing or argument, and di-
rect the District Court to designate Indiana as the Govern-
ment requested.
Ordinarily, this Court grants petitions for certiorari be-
fore judgment only “upon a showing that the case is of such
4 UNITED STATES v. HIGGS
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1 Other judges and courts have taken different positions along this
spectrum. See Execution Protocol Cases I, 955 F. 3d, at 134 (Rao, J., con-
curring); Order in Montgomery v. Rosen, No. 21–5001, pp. 7–8 (CADC,
Jan. 11, 2021) (Millett, J., dissenting); United States v. Vialva, 976 F. 3d
458, 462 (CA5 2020) (per curiam); LeCroy v. United States, 975 F. 3d
1192, 1198 (CA11 2020) (“Whatever that phrase means, we are confident
that it does not extend to ensuring a lawyer’s presence at execution”);
United States v. Mitchell, 971 F. 3d 993, 996–997 (CA9 2020) (per cu-
riam); Peterson v. Barr, 965 F. 3d 549, 554 (CA7 2020).
6 UNITED STATES v. HIGGS
op., at 3). Lee and Purkey, however, did not file their claims
at the last minute. They did so shortly after the DOJ an-
nounced the new protocol and scheduled their executions.
Nelson raised his claim before his execution was even an-
nounced. It was the Government, not the inmates, who
charged ahead with conducting executions under the chal-
lenged protocol, creating an “artificial claim of urgency to
truncate ordinary procedures of judicial review.” Id., at ___
(SOTOMAYOR, J., dissenting) (slip op., at 1). The Court con-
doned the Government’s tactics and granted a stay.
This Court repeated this error just this week. On Decem-
ber 16, 2020, both Corey Johnson and Dustin Higgs tested
positive for COVID–19. They quickly moved to enjoin their
executions, arguing that lung damage caused by the virus
substantially increased the likelihood they would suffer tor-
turous effects if executed with pentobarbital. The District
Court held an evidentiary proceeding and agreed. In re
Federal Bureau of Prisons’ Execution Protocol Cases, ___
F. Supp. 3d ___, ___–___, 2021 WL 106576, *5–*9 (DDC,
Jan. 12, 2021). This time, the Court of Appeals stayed the
injunction, relying on this Court’s flawed decision in Lee.
Order in Roane v. Rosen, No. 21–5004, p. 4 (CADC, Jan. 13,
2021) (Katsas, J., concurring). This Court left that ruling
in place, again allowing these executions to proceed despite
the District Court’s careful fact-finding and the risk of need-
less and significant pain.
B
The issues left unresolved during this saga do not end
with the FDPA and 2019 Protocol. Many other challenges
deserved this Court’s review. None were granted. While I
cannot catalogue all these claims here, some particularly
troubling ones bear mention.
Consider again Corey Johnson. In addition to the claim
already discussed, Johnson sought a reduction of his death
sentence under the First Step Act of 2018, Pub. L. No. 115–
8 UNITED STATES v. HIGGS
(the Fair Sentencing Act must modify any penalty in the statute of con-
viction, such as 21 U. S. C. §841), with United States v. Jones, 962 F. 3d
1290, 1298 (CA11 2020) (the Act must modify the penalty for the defend-
ant’s actual violation).
Cite as: 592 U. S. ____ (2021) 9