Cory Johnson, facing execution Thursday, loses stay of execution

A stay blocking Thursday's execution of Cory Johnson has been vacated by a federal appeals court in Washington.

Johnson, 52, is set to die at the Federal Correctional Complex Terre Haute in Indiana for the murders of seven people in Richmond in 1992 while he was a member of the so-called Newtowne gang.

A federal judge in Washington granted a stay of execution, at least until February, for Johnson and death row inmate Dustin Higgs, 48, who is set to die Friday. Both men have COVID-19, and the judge cited the possibility that lethal injection could lead to a violation of the Eighth Amendment ban against cruel and unusual punishment.

Experts for the death row inmates said pentobarbitol, the drug used in executions, could cause "flash pulmonary edema," a condition similar to drowning or waterboarding while they are still conscious. Government witnesses gave conflicting opinions.

A 2-1 ruling by the U.S. Court of Appeals for the District of Columbia late Wednesday sided with the government and vacated the stay of execution.

Johnson's lawyer said they will be seeking a rehearing Thursday. The court gave Johnson and Higgs' lawyers until 9 a.m. Thursday to file petitions.

Shawn Nolan, a lawyer for Higgs, said, "We will ask the full court to step in to reinstate the stay, but it is time for the government to stop carrying out super-spreader executions. Dustin Higgs contracted COVID-19 because of the government’s irresponsible actions in carrying out executions during the pandemic, and his lungs are still damaged as a result of the infection."

Johnson's lawyer, Donald Salzman, said Thursday that in addition to COVID-19, his client should not be executed "because he is a person with intellectual disability who cannot constitutionally be executed. The government should withdraw [Johnson's] execution date, or President Trump should grant him clemency."

If executed, Johnson and Higgs would die less than a week before President Donald Trump leaves office and before President-elect Joe Biden, who opposes capital punishment, takes of the oath of office.

The federal government had not executed anyone since 2003 until last year when the Trump administration resumed carrying out death sentences. A total of 11 persons have been executed including Lisa Montgomery, 52, who died by injection Wednesday, the first woman executed by the federal government since 1953.

In vacating the COVID-19 stay issued Tuesday, Judge Gregory G. Katsas wrote, "The record contains only conjecture on whether a lethal injection of pentobarbital would cause any edema before rendering the prisoner insensate."

"Higgs and Johnson each committed multiple murders," wrote Katsas. "They have had ample opportunity to file clemency petitions. And the Supreme Court repeatedly has stressed that the public has a 'powerful and legitimate interest in punishing the guilty' ...  which includes 'an important interest in the timely enforcement of a [death] sentence.'"

Judge Cornelia Pillard dissented. "Following a series of 11 executions carried out by the federal government since July 2020 ... Johnson and Higgs are the only federal inmates left on death row who face a scheduled execution."

"The government insists that these final scheduled executions must proceed as planned. It fails to explain why they must take place this week. To be sure, the Supreme Court has emphasized that '[l]ast-minute stays should be the extreme exception, not the norm,' in death penalty cases," she wrote.

"But Johnson’s and Higgs’ claims could not have been brought earlier," Pillard wrote. "As soon as they knew of their COVID-19 diagnoses, they notified the district court; within days, they supplemented their complaints."