The accelerated timeline of Lisa Montgomery’s case, and the Justice Department’s determination to proceed despite an election loss and her lawyers’ incapacity due to COVID-19, is an example of the dangerous consequences of its misplaced priorities.
Lisa Montgomery, a victim of severe child and sexual abuse with a history of mental instability, is the only woman on federal death row. The accelerated timeline of Montgomery’s case, and the Justice Department’s determination to proceed despite an election loss and her lawyers’ incapacity due to COVID-19, is an example of the dangerous consequences of its misplaced priorities.
As part of its renewed commitment to federal executions and a broader campaign to bolster its “law and order” credentials, the Justice Department, without notice to her attorneys and in the midst of a pandemic, announced in October that Montgomery’s execution would take place Dec. 8. Defense attorneys, taken by surprise at the expedited process, scrambled to respond and contracted COVID-19 after visiting Montgomery.
Lisa Montgomery was born with brain damage and was a victim of sustained child abuse, incest, gang rape and sex trafficking by her mother, stepfather and others—resulting in several mental disorders that frequently cause dissociative episodes. Her post-conviction attorneys, assistant federal public defenders Kelley Henry and Amy Harwell, have devoted years to developing rapport with Montgomery and have closely monitored her fragile mental health, which includes hallucinations, psychosis and depression.
Trips to visit Montgomery involve two flights, hotel stays and interactions at the Texas prison where she is being held and which is experiencing an outbreak involving a quarter of inmates and resulting in six deaths. This extensive travel and interactions at the prison exposed her attorneys to the coronavirus, which has debilitated them and impeded their ability to provide effective counsel.
Their visits to Montgomery in October and early November also revealed a serious deterioration of her mental state since she learned of her execution date and in response to the conditions in which she is being held. After the Justice Department set Montgomery’s execution date, prison officials altered her living conditions by, among other things:
- transferring her to a cold, constantly-lighted cell where male guards observe while she uses the toilet;
- taking away her underwear (particularly traumatic due to her history as a victim of sexual violence); and
- removing all of her personal belongs, including her legal papers and family photos.
A lawsuit has been filed by the American Civil Liberties Union challenging these “uniquely harsh” conditions.
Another lawsuit, filed in the U.S. District Court for the District of Columbia by Cornell Law School’s International Human Rights Clinic on Nov. 11, sought to stay Montgomery’s execution until her attorneys could recover and visit her so that they can effectively prepare and submit her clemency application, which is required to preserve Montgomery’s constitutional rights to be represented by her longstanding lawyers in the clemency process. The Office of the Pardons Attorney had rejected her attorneys’ request for a reprieve, refusing to acknowledge how the pandemic has hobbled Montgomery’s defense efforts.
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U.S. District Judge Randolph D. Moss heard oral arguments on the case and issued a stay of execution, which is likely to be appealed by the Justice Department. Cornell law professor Sandra Babcock, who argued on behalf of Montgomery, said:
“The district court’s ruling gives Lisa Montgomery a meaningful opportunity to prepare and present a clemency application after her attorneys recover from COVID. Montgomery’s case presents compelling grounds for clemency, including her history as a victim of gang rape, incest, and child sex trafficking, as well as her severe mental illness. She will now have the opportunity to present this evidence to the president before her execution date.”
By delaying Montgomery’s execution until her attorneys can complete her clemency application no later than Dec. 24, the court recognized that the attorneys’ illness both denies Montgomery fair access to the clemency process and results from the government’s insistence on scheduling executions despite the raging pandemic.
On Nov. 13, a group of Congress members made up of Rep. Ayanna Pressley (D-Mass.) and Sens. Dick Durbin (D-Ill.), Patrick Leahy (D-Vt.) and Cory Booker (D-N.J.) requested “in the interests of justice” that the Justice Department suspend all federal executions—which would include Montgomery’s—so that the new executive administration can reevaluate federal use of the death penalty.
Clemency applications allow prisoners on death row a fair opportunity to demonstrate that they are deserving of mercy. Montgomery has garnered widespread support for her viable case for clemency from a broad coalition which includes current and former prosecutors, mental health organizations, and advocates devoted to ending violence against women and children, protecting victims of child abuse and combatting human trafficking. Over 1000 supporters petitioned President Trump to commute her death sentence in light of her long history of child abuse, sexual abuse, trauma and mental illness.
With Montgomery’s lawyers too ill to complete fully her clemency filing and with mental health experts familiar with her history unable to travel to evaluate her current mental health status, the district court recognized that Montgomery was being denied two critical elements for proving clemency.
Unless that decision is upheld on appeal, however, Montgomery may well be put to death, unjustly denied her constitutional rights to both effective assistance of counsel and a substantive review of a fully-realized clemency application.
More information about Lisa Montgomery’s case is available at www.savelisa.org.
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