Amid pandemic and Trump’s final chaotic days, a Maryland man with COVID-19 fights his federal execution

BALTIMORE — As with many death row inmates, the final days before Dustin John Higgs’ scheduled execution Friday are marked by a flurry of last-minute legal appeals to spare his life.

But the fate of Higgs, 48, convicted of murdering three women in Prince George’s County in 1996, hinges as well on the two inescapable events currently roiling the country: the chaotic end of the presidency of Donald Trump and the raging coronavirus pandemic.

Higgs was tried and sentenced by federal rather than state authorities because his crime occurred on U.S.-owned land. He is among a group whose executions were ordered last year by the Trump administration, breaking a 17-year moratorium on putting federal inmates to death.

President-elect Joe Biden has pledged to abolish the federal death penalty. That Higgs’ execution is scheduled just five days before Biden takes office adds to what his son calls a “roller coaster” of emotions as the date approaches.

“Trump’s administration is just rushing it,” said Da’Quan Darby, Higgs’ 24-year-old son. “It’s crazy they have him getting executed right before Biden is in.

“If we could just get one more day,” Darby said.

Born the year the three women were killed, he has seen Higgs over the years only in contactless visits separated by a partition at the U.S. Penitentiary in Terre Haute, Indiana, which houses the federal death row.

Higgs, sentenced in October 2000, was the first Marylander to receive the federal death penalty. Relatives of the women he was convicted of murdering praised the sentence as just at the time.

“As terrible as this crime was, I thank God that justice was served,” said Joyce Gaston, mother of Tamika Black, who was 19 when she was killed. Gaston could not be reached for comment for this article.

But Higgs’ supporters have long argued that his sentence was unjust because he did not shoot the three women himself. Rather, prosecutors said, he ordered another man to do it. That man, who has since denied that he acted at Higgs’ behest, received a life sentence.

While Higgs filed various appeals over the years, those efforts stepped up after then-Attorney General William Barr announced the administration would resume federal executions, which had unofficially been discontinued as litigation created delays and pharmaceutical companies refused to sell their drugs for use in lethal injections. The July 2019 announcement prompted further legal challenges, but by last summer, the Supreme Court had paved the way for executions to begin.

By July, when the first federal inmate since 2003 was executed — followed by nine more by year’s end — the coronavirus was firmly entrenched in the U.S., spreading particularly rapidly in congregate living facilities such as prisons.

Higgs tested positive for COVID-19 last month, a diagnosis that figures in a case, currently awaiting a ruling, seeking to delay his execution. COVID-19, his lawyers argue, has caused lung damage that puts him at greater risk of painful pulmonary edema, the flooding of fluid into the lungs, when he is given the lethal injection. They argue that would violate his constitutional protection against cruel and unusual punishment.

The pandemic has already delayed executions on the state level, with officials wary of gathering, in a confined space, the large number of personnel, witnesses and others needed to carry them out.

But federal authorities have taking the opposite tack, conducting executions at an unprecedented pace even as critics say these have become superspreader events.

Defense attorneys say multiple people involved in executions have contracted COVID-19. As with other correctional facilities across the country, the Terre Haute prison complex has had outbreaks as well.

The U.S. Bureau of Prison’s website listed 107 inmates and five staff members with “confirmed active cases” of COVID at the U.S. Penitentiary in Terre Haute as of Saturday. That number can fluctuate greatly as some recover and others test positive. Earlier in the week, for example, the website said 248 inmates had active cases.

The federal agency, citing pending litigation and privacy concerns, declined to say how many inmates in the Special Confinement Unit, the formal name for death row, have tested positive. One employee assigned to the unit tested positive for COVID, a spokesman said in an email, but he said that employee had no contact with staff involved in executions in November or December.

Shawn Nolan, a federal public defender who represents Higgs, said the pandemic has made it harder to safely meet with clients and work on legal challenges to spare their lives. After so many years in which federal executions have essentially been on hold, he questions the rush to schedule them — particularly under a lame-duck administration which has refused to provide explanations for which inmates they have targeted to put to death.

In court filings seeking to delay executions, defense attorneys accused Department of Justice officials of racing a calendar that will usher in a new president.

“It appears the DOJ is rushing to execute as many people on federal death row as possible before a new administration takes power,” they wrote.

“There’s no rhyme or reason to who gets scheduled,” Nolan said in an interview, noting others have been on death row longer than Higgs. “We can’t figure out who they’re choosing, why they’re choosing or when.”

While a group of federal inmates filed a legal challenge to the current method of execution before the advent of the pandemic, COVID-19 adds to the argument against it, Nolan said. The drug currently used, pentobarbital, carries a risk of creating flash pulmonary edema and an excruciating sense of drowning before the inmate’s losing consciousness and dying, he said.

Those with COVID-19, which can damage the lungs, are even more vulnerable, Nolan said. “It’s tantamount to waterboarding,” he said.

In addition to Higgs, at least one other federal death row inmate, Cory Johnson, 52, is known to have tested positive. Johnson, sentenced to die on Jan. 14 for the murder of seven people in Virginia, and Higgs have jointly filed to halt their planned executions because of their COVID diagnoses.

On Tuesday, U.S. District Judge Tanya S. Chutkan held a hearing via teleconference for Justice Department and defense lawyers to present experts and arguments on the issue. They disagreed on a range of issues, from the severity of the inmates’ conditions to whether the effect the injection might have would constitute the kind of cruel and unusual punishment prohibited by the Eighth Amendment.

Chutkan in November had temporarily halted the execution of one federal inmate, Orlando Hall, so that issues his attorneys raised could be examined, but the Supreme Court allowed it to proceed.

The number of federal executions carried out during the Trump administration comes at a time when the use of capital punishment has increasingly fallen out of favor.

“It runs contrary to the trend in the U.S. and around the world,” said John Bessler, a University of Baltimore law professor who has written several books on capital punishment and who opposes it.

Bessler said a focus on racial disparities in how capital punishment is applied and the availability of DNA data to exonerate death row inmates such as Maryland’s Kirk Bloodsworth have helped to sway public opinion and prompt states to abandon the practice.

Maryland, which repealed the death penalty in 2013, is one of 22 states plus the District of Columbia with bans on its use, and even some states that allow execution have imposed moratoriums.

The number of people executed in the U.S. has been on about a two-decade decline. A total of 17 people were executed in 2020, including the 10 federally. The total is down from 22 the year before and the peak of 98 in 1999, according to the Death Penalty Information Center, a nonprofit that tracks data and issues related to capital punishment.

But Trump has long and vocally supported the death penalty. Even without the three executions scheduled next week before Trump leaves office at the latest on Jan. 20, he has presided over more federal executions than any president since the 1800s.

Ten inmates were put to death in the final six months of last year after federal executions were resumed. In the preceding 93 years, 37 federal inmates had been executed, a group that includes such notorious figures as the spies Julius and Ethel Rosenberg and the Oklahoma City bomber Timothy McVeigh, who were put to death respectively in 1953 and 2001.

Now the focus turns to the three inmates scheduled to die in the next week: Higgs, Johnson and a woman, Lisa M. Montgomery, 52.

Maryland legislators, including House Speaker Adrienne A. Jones, and the state’s Catholic bishops have written appeals seeking to change Higgs’ death sentence to life in prison.

Higgs’ crime dates back to Jan. 27, 1996, when the three women — Tanji Jackson, 21; Mishann Chinn, 23; and Black — were found shot to death along a desolate stretch of Route 197 in the Patuxent Wildlife Research Center, federally owned land in Prince George’s County.

According to trial testimony, they had been at Higgs’ apartment in Laurel when a dispute arose. The women left, but accepted a ride home by Higgs and another man, Willis Haynes. Instead, they were driven to the isolated area and, according to testimony, Higgs gave Haynes a gun and told him to “make sure they’re all dead.”

Haynes was separately convicted in the murders and sentenced to life in prison. He has since provided an affidavit to Higgs’ lawyers, saying that contrary to what prosecutors argued in the case, he was not ordered to kill the women.

Chinn’s mother, Krishana Chinn, declined to comment for this article, and family members of the other victims could not be reached.

When Higgs was sentenced in 2000, relatives of the victims said they believed it was the correct punishment. “He ordered my daughter’s death, and I think it’s only appropriate that his death is ordered,” Gaston said then.

Darby, Higgs’ son, said he “feels horribly” for the families of the young women. “I send my condolences to these families,” he said.