The first message came on Christmas morning which, if the Trump administration has its way, will be Dustin Higgs’ last holiday.
“I would like to do whatever I can do to shine a light on this most horrific thing named the death penalty,” Higgs wrote to me in an email from federal death row. “To be honest with you, I don't have time to waste,” he added in a followup message a few days later.
Higgs is one of three prisoners the Justice Department plans to execute this week—the final wave of what has been an unparalleled exercise of capital punishment by a modern presidential administration. Before Trump, there hadn’t been a single federal execution since 2003 (states have executed hundreds of people in that time, however). Yet in the last six months, the administration has overseen the killing of 10 people—a stunning tally, given that the federal government had only executed 37 people in the century prior.
Attention to what outrageous, boundary-pushing acts Trump might perform before finally leaving office has mostly been focused on pardons and, after the events of January 6th, incitement to insurrection. But in his last days as president, amid mounting calls for his resignation, Trump will also rush to exercise the most significant right granted to a government—the power to take the life of its citizens.
Later today the federal government hopes to kill Lisa Montgomery, convicted of a 2007 murder in Missouri; Montgomery’s attorneys argue she suffers brain damage and severe mental illness following years of torture and rape by her mother and stepfather as a child. Late Monday, a judge in Indiana halted the proceedings in order to determine Montgomery’s competency, at least temporarily thwarting the administration’s efforts. (Update: The Supreme Court cleared the way for the execution to proceed on Tuesday evening, and Montgomery was killed early on Wednesday morning. She was the first woman to be executed by the federal government in 70 years.)
On Thursday, federal officials hope to kill Corey Johnson, convicted of seven gangland murders, who lawyers also argued should be ineligible for death because he is intellectually disabled, having been institutionalized at 13 after his drug-addicted mother abandoned him.
And then, on Friday, the Trump Administration plans to kill Higgs, a 48-year-old black man convicted of the 1996 murder of three women in Maryland. His death would likely be the last federal execution for the foreseeable future—Joe Biden, who has said he opposes the federal death penalty, will be inaugurated just five days later.
“I ask myself all the time where is the justice? Higgs wrote to me. “If you want to talk about arbitrary within the criminal justice system you have chosen the right case that is for sure.”
In the wave of media coverage that comes in the weeks leading up to an execution, the voice of the person being killed is often missing—spoken for, instead, by their attorneys and legal filings. Yet Higgs has many things he wants to say. In recent weeks, he and I have traded close to a dozen emails, in which we’ve discussed the crime for which he was convicted, the court proceedings that followed, and the years-long fight to save his life.
“I have been watching all the madness going on in D.C…” Higgs wrote to me last Thursday. “I doubt that Trump will lose his presidency in the final days. But, it is remarkable that with all this chaos going on with the Trump administration, that they are still so eager to move forward with three so-called executions.”
Higgs had been on death row for 20 years when, in late November, the Trump Administration announced its intent to kill him, four months after the administration resumed federal executions, a move championed by then-Attorney General Bill Barr. “The Justice Department upholds the rule of law,” Barr declared in July. “And we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”
Three of the ten killings so far were carried out after Trump lost the November election—the first federal executions during a lame duck period in more than a century. The prisoners selected were seemingly calibrated to be the least likely to prompt public outcry: The first wave were primarily inmates convicted of crimes against children; the second, those convicted of multiple murders.
“It is kind of a random selection process and that should not be a part of our death penalty scheme or jurisprudence,” said Shawn Nolan, the attorney representing Higgs, who also works with other death row inmates. “There are many people who have been on death row for longer (than Higgs).”
There is no disputing the horror of the January 1996 murders of Tanji Jackson, Tamika Black and Mishann Chinn. There is also no dispute that Dustin Higgs was not the one who shot them.
The women had spent the night partying at Higgs’ apartment along with him and two of his friends, Willis Haynes and Victor Gloria. According to prosecutors, Jackson and Higgs argued after she rebuffed one of his advances, prompting the women to leave. The men followed the women out, offering a ride back home to Washington D.C., but instead drove them to a secluded area in the Patuxent National Wildlife Refuge, where Haynes shot and killed all three of them.
While Maryland does not have the death penalty, the crime had technically been committed on federal land, opening the door for prosecutors to seek execution. Both Haynes and Higgs faced murder trials, in which prosecutors advanced conflicting theories. In the first trial, they argued Haynes was a calculated and cold blooded killer operating of his own volition. In the second, they claimed Haynes was scared of Higgs, who supposedly insisted Haynes commit the shootings. The cases relied heavily on the testimony of Gloria, who had initially told police he was asleep during the shooting but eventually talked about what had happened in exchange for leniency.
Ultimately, Haynes—the shooter—was sentenced to life in prison after the first trial. Higgs, meanwhile, received nine death sentences.
“The two worst times in my life is when I lost my mother at ten years old, and the murders...My mother was my everything, but, if I had the choice to change one event in my life I would bring back Tanji Jackson, Tamika Black, Mishann Chinn.” Higgs wrote to me. “My mothers death was nature's work while these murder were horrific and shouldn't have happen.”
Attorneys for Higgs have argued that he did not know that Haynes intended to kill the women. And only after Higgs was sentenced to death was his legal team made aware of a jailhouse witness who told prosecutors that Haynes killed the women because one of them owed him drug money. At the very least, Higgs’ attorneys argued in an unsuccessful appeal, this information could have resulted in a sentence of life in prison, not death.
“The prosecution’s theory of our case was bullshit. Dustin didn’t threaten me. I was not scared of him. Dustin didn’t make me do anything that night or ever,” Haynes wrote in an affidavit included in Higgs’ unsuccessful attempts to lobby the Obama Administration for clemency. “Dustin screamed at me about it. He said I had put him in a messed-up situation. He had planned to leave the women there—alive—at the side of the road.”
In what could be his final weeks, Higgs has been waking up around 4:30am each morning to pray and read the Qur’an, eat breakfast and then head to the prison’s law library, where he’s allotted about four hours each day to study case law and email with his family and friends. His afternoons are spent reading mail—“It seems like I am getting a lot of mail these days, believe me I am not complaining, it feels good to have the support”—and on conference calls with his attorneys. In the evenings he listens to music and paints until bed around 11pm.
Higgs learned to paint in prison, and has spent six years dreaming of selling his work. “I would like to be remembered as someone who transformed his mind and ultimately changed the dire circumstances of his family, all from a cell,” he wrote to me. “I didn't think I would have to accomplish this goal on a clock, but here we are.” As his siblings work to copyright his work, Higgs has prepared his will.
Higgs says he has worked to develop relationships with his two children, both born shortly after his arrest. “Death row has affected the physical part of our relationship. I think that the emotional connection and bond we have is very strong. I know that when we chat with each other, we keep it all the way real,” Higgs told me. “There is no doubt in my mind that there have been some effects on my children, because of my absence. I am not naive to that fact. They have struggled in ways that they may not have had to struggle if I had not been taken from them.”
For the most part, their bond has been built through handwritten letters and the occasional in-person visit. It was during one of these visits, in mid-December, that Higgs’ 24-year-old son noticed something amiss. Higgs couldn’t stop coughing, and kept asking if the visiting room was cold. Two days later, he tested positive for COVID-19. He was among a wave of COVID cases on the federal death row—one of at least 14 prisoners held there, including Johnson, who tested positive in December.
The outbreak, Higgs’ attorneys argued, was likely the direct result of the administration’s haste to conduct executions—each killing requires dozens of outside employees and security to be flown to Terre Haute, Indiana. (At least 8 members of the execution team for the November 19 killing of Orlando Hall tested positive for COVID.) Once he was diagnosed, Higgs’ legal team was unable to meet with him in the crucial weeks prior to his execution date, and they argued in court that the virus has caused lung damage that would result in significant pain and suffering were Higgs subject to lethal injection.
“Now that the world has taken an interest in my cause, maybe they will be forced to be more transparent,” Higgs told me in a recent email, after I asked him about his expectations for the various appeals being filed on his behalf. “I will not hold my breath, though.”
Opponents of the death penalty often point to the Supreme Court’s 1972 ruling in Furman v. Georgia, which for a time halted executions in the United States. In ruling that the death penalty, as applied at the time, was “cruel and unusual,” four of the justices focused on the arbitrary means by which someone could seemingly be sentenced to death. “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” Justice Potter Stewart famously wrote. “For, of all the people convicted of rapes and murders...many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.”
We’ll never know what, precisely, happened that night in Maryland. We know Higgs was there. And it may be true, despite his protestations of innocence, that he knew or should have known that violence was imminent. But the totality of the case—from the location of the crime, to Haynes’ affidavit, to the chaos of the final days of Trump, to the fast-approaching inauguration of Joe Biden—makes it hard to see Higgs’ looming execution as anything but arbitrary.
“I don't embrace my execution date,” Higgs told me in one of his recent messages. “I think this is what injustice looks like up close and personal.”
Originally Appeared on GQ