EDITED (11/20/20): A federal judge temporarily delayed the December 8th execution of Lisa Montgomery, so that her lawyers can recover and prepare a clemency petition. Read on, as the fight for her life continues.
Lisa Montgomery is scheduled to die by lethal injection on December 8th. Montgomery would be the first woman executed by the federal government in almost 70 years.
Montgomery also faces the prospect of being executed without the assistance of her lawyers, Kelley Henry and Amy Harwell. Both attorneys contracted COVID-19 after visiting Montgomery to work on her clemency petition.
The Trump Administration’s Killing Machine
Before this past summer, the last federal execution was in 2003.
That all changed shortly before the August 2020 Republican National Convention. In July, U.S. Attorney General William Barr announced, seemingly out of nowhere, his intention to ramp up federal executions.
Since then, the federal government has killed seven men by lethal injection, with an eighth, Orlando Hall, scheduled to die on November 19th.
Nothing — truly nothing — about any of these cases required immediate or urgent action. These men had been on death row for years without an imminent execution date, and there was no reason — except politics and optics — for the federal government to resume executions after a nearly twenty-year hiatus.
Especially in the middle of a pandemic.
A Reckless Hobson’s Choice
Because of the Trump administration’s sudden decision to resume executions, defense lawyers who represent people on federal death row were faced with a terrible decision: fight for their clients’ lives from a distance, or risk their health by visiting their clients in prisons, where the coronavirus is running rampant.
Barr was aware of the Hobson’s choice he was foisting upon capital lawyers. He insisted they make it anyway.
Now, Kelley Henry and Amy Harwell have the virus. They contracted it after visiting Montgomery at a federal medical facility in preparation for her clemency petition. An emergency lawsuit filed on behalf of Henry and Harwell excoriates Barr for “recklessly” scheduling the execution during a pandemic, which required the lawyers to fly from Nashville to Texas, where Montgomery was being held at a federal medical center, three times in October and November. Each trip involved “two plane flights, transit through two airports, hotel stays, and interaction with dozens of people.” Within days of their last visit, the lawyers developed the virus and are now “bedridden,” according to legal filings in the case.
Sex Trafficking, Sexual Violence, and Mental Illness
Montgomery suffers from longstanding and profound mental illness — hallucinations, psychosis, and depression — which likely stem from the extraordinary abuse she experienced as a child. Her early life reads like a horror story, rife with abuse and sexual violence. Montgomery was sex trafficked by her own mother, raped by her stepfather, and experienced severe beatings and mental abuse. She stands convicted of murdering a pregnant woman in 2007 and acting as if the surviving baby was her own.
A coalition of more than 1,000 advocates, including prosecutors, advocates for survivors of sex trafficking and domestic violence, and mental health activists have petitioned President Trump to delay the executions.
But without her lawyers’ representation, it will be difficult, if not impossible, for her clemency petition to proceed in a timely manner.
Of the twenty-eight states that still allow the death penalty, most have deferred executions until the coronavirus crisis resolves. Texas and Tennessee are among the states that have postponed or rescheduled executions because of COVID-19 conditions. The postponement decision reflects genuine concern for the safety of the people involved, from the defense lawyers, prosecutors, correctional staff, medical personnel, and members of the press, to the families of victims and defendants who might want to attend the execution.
The Trump Administration likewise could have deferred all federal executions — including that of Lisa Montgomery — until the coronavirus was under control. The courts and the President would then have had time to carefully consider whether the ultimate punishment of death was truly the appropriate sentence in Montgomery’s case.
Instead, Montgomery — and her two lawyers — are left to suffer the serious and perhaps lethal consequences of the Trump Administration’s mid-pandemic execution frenzy.