By Jonathan Allen
(Reuters) – A U.S. judge was weighing whether to delay the executions of two convicted murderers who contracted COVID-19 after their lawyers argued on Tuesday that their virus-damaged lungs would result in inordinate suffering if they were to receive lethal injections.
The U.S. Department of Justice announced last month that Corey Johnson, 52, and Dustin Higgs, 48, had been diagnosed with COVID-19 but that it would proceed with their executions set for Jan. 14 and 15. Both men are being held on death row at a federal prison in Terre Haute, Indiana.
If their lawyers succeed, it could be the rare instance where contracting COVID-19 has proved a lifesaver: Democratic President-elect Joe Biden, who is to be inaugurated on Jan. 20, has promised to seek to end the federal death penalty.
The Justice Department, citing several medical experts, argued before U.S. District Judge Tanya Chutkan in Washington that any lung damage would not lead to the sort of inordinate pain that would breach the ban on cruel or unusual punishment in the U.S. Constitution’s Eighth Amendment.
Lawyers for the two men, citing their own medical experts and an X-ray of Higgs’ lungs showing injuries from COVID-19, said at the teleconference hearing that the damage in their lungs would mean the delicate tissues inside would rupture more quickly after lethal doses of pentobarbital, a powerful barbiturate, had been administered.
There could be a period of several minutes in which the men experience drowning as their lungs filled with bloody fluids — a pulmonary edema — before the drug rendered them insensate or killed them, the lawyers argued, calling it a form of torture.
“Because of Mr. Johnson’s and Mr. Hicks’ COVID diagnosis, the lethal injection protocol is essentially going to waterboard them to death,” Alex Kursman, a lawyer representing Higgs, told the court. “Being waterboarded to death violates the Eighth Amendment.”
Republican President Donald Trump resumed federal executions last year after a 17-year hiatus. His administration also plans to execute the only woman on federal death row, Lisa Montgomery, on Jan. 12.
Judge Chutkan has previously delayed earlier executions after ruling there would be undue suffering even in inmates without COVID-19 and that the government’s lethal-injection protocol broke drug safety laws. Her earlier injunctions were overturned by higher courts, and the Trump administration has executed 10 men so far.
Chutkan on Tuesday appeared skeptical toward the Justice Department’s position that COVID-19 would not make a difference.
“Doesn’t that seem logical, that there would be less suffering when they were no longer suffering from COVID symptoms?” she asked Jean Lin, a Justice Department lawyer.
Lin replied that this was only speculation.
“Our experts agree and have shown that they’re not clinically significant,” she said, adding that the two men had only “mild symptoms.”
Lawyers for the two men have asked that the court order the executions be delayed until the men’s lungs have healed, or that they be given an analgesic prior to the lethal injection or that they be executed by firing squad instead, all of which the Justice Department opposes.
Higgs was convicted of overseeing the kidnapping and murder of three women on the Patuxent Research Refuge in Maryland in 1996. He did not kill anyone himself, which his lawyers have argued is grounds for clemency.
Johnson was convicted of murdering seven people in Virginia in 1992 as part of a drug-trafficking ring.
(Reporting by Jonathan Allen in New York; editing by Jonathan Oatis)
