The supreme court justices Sonia Sotomayor and Stephen Breyer have excoriated the Trump administration for carrying out its 13th and final federal execution days before the president leaves office.

Dustin John Higgs died by lethal injection at the federal correctional institute in Terre Haute, Indiana, on Friday night, after his 11th-hour clemency appeal was rejected.

Higgs, 48, was convicted of murdering three women at a Maryland wildlife refuge in 1996, even though it was an accomplice who fired the fatal shots. Willis Haynes was convicted of the same crime but sentenced to life.

“This was not justice,” Sotomayor, a Barack Obama appointee, wrote in an order issued late on Friday.

Sotomayor, who was critical of the Trump administration’s July 2019 announcement that it would resume federal executions after a two-decade hiatus, condemned what she saw as “an unprecedented rush” to kill condemned inmates. All 13 executions have taken place since July 2020.

“To put that in historical context, the federal government will have executed more than three times as many people in the last six months than it had in the previous six decades,” she wrote.

“There can be no ‘justice on the fly’ in matters of life and death,” Sotomayor added. “Yet the court has allowed the United States to execute 13 people in six months under a statutory scheme and regulatory protocol that have received inadequate scrutiny, without resolving the serious claims the condemned individuals raised.”

Breyer, a fellow liberal on the nine-justice high court, was equally scathing, naming each of the 13 executed prisoners and noting a lower court’s observation that Higgs had significant lung damage. The lethal injection of pentobarbital, Breyer said, would “subject him to a sensation of drowning akin to waterboarding”.

He said the court needed to address whether execution protocols risked extreme pain and needless suffering and pressured the courts into last-minute decisions on life or death.

“What are courts to do when faced with legal questions of this kind?” he wrote. “Are they supposed to ‘hurry up, hurry up?’”

Breyer went further than Sotomayor by questioning the constitutionality of the death penalty, the first member of the current panel to do so. The third liberal justice, Elena Kagan, also dissented in the Higgs case but did not give an explanation.

Higgs’s petition for clemency said he had been a model prisoner and dedicated father to a son born after his arrest. He had a traumatic childhood and lost his mother to cancer when he was 10, it said.

He was convicted in October 2000 by a federal jury in Maryland for the first-degree murder and kidnapping in the killings of Tamika Black, 19; Mishann Chinn, 23; and Tanji Jackson, 21. Although Haynes shot the women, Higgs handed him his gun.

“He received a fair trial and was convicted and sentenced to death by a unanimous jury for a despicable crime,” the US district judge Peter Messitte wrote in December.

Arguably the most high-profile execution of the Trump administration came just days ago when Lisa Montgomery received a lethal injection at Terre Haute and became the first woman put to death by the federal government almost seven decades.

Her lawyer accused the Trump administration of “unnecessary and vicious use of authoritarian power”.

Many believe officials rushed to complete a series of executions before Joe Biden is inaugurated on 20 January. Biden has stated his desire to have the death penalty abolished at federal and state level.


Richard Luscombe

The GuardianTramp

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