Lisa Montgomery, the only woman on federal death row, was scheduled to be executed on Jan. 12—until a federal court ruled on Dec. 24 that her execution date violated federal regulations establishing the procedures for carrying out the death penalty, a ruling that may save her life.
Lisa Montgomery, the only woman on federal death row, was scheduled to be executed on Jan. 12—until a federal court ruled on Dec. 24 that her execution date violated federal regulations establishing the procedures for carrying out the death penalty.
This is a major victory for Montgomery and her advocates, who protested the Trump administration’s scheduled execution of Montgomery, despite her history of brain damage, child abuse and severe sexual trauma. The Department of Justice fought all attempts to postpone her execution or grant an extension for her clemency petition—including by ignoring significant international pressure from allies—while at the same time rushing ahead with a broad array of last minute pardons to loyalists and political allies.
On Dec. 23, Montgomery’s attorneys presented oral arguments to Judge Randolph D. Moss of the U.S. District Court for the District of Columbia, detailing how the government’s rescheduling of Montgomery’s execution during the pendency of his previously-issued stay of execution contravened both regulations regarding death penalty sentencing and the terms of the court’s stay. Judge Moss had ordered the stay to allow for the attorneys who are preparing Montgomery’s clemency application to recover from serious symptoms of COVID-19 infections that they contracted while visiting Montgomery in prison.
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Montgomery’s attorneys argued that federal rules require that, during a stay of execution, a new execution date can only be set only after the stay is lifted—which in her case will be Dec. 31, 2020. Federal regulations further allow prisoners to receive at least 20 days’ notice of any new execution date, with certain exceptions not present in Montgomery’s case.
Given these regulations, her lawyers argued, the earliest the Trump administration could reschedule her execution date would be for 20 days after the stay is lifted—or January 21, 2021. Significantly, this will be one day after President-elect Biden is sworn into office—allowing him to act immediately to cancel or postpone her execution, or grant her clemency.
Judge Moss agreed with this interpretation, finding that by setting the execution date the government had contravened federal regulations. As a result, the government may not set an execution date until after the stay is lifted on Dec. 31. The Department of Justice is likely to appeal the ruling, given the determination and haste it has shown pushing forward with Montgomery’s execution on an expedited basis.
Meanwhile, the State Department has ignored international calls to halt Montgomery’s execution as a violation of her fundamental human rights. The Inter-American Commission on Human Rights, a permanent autonomous human rights compliance oversight body of the Organization of American States, issued precautionary measures calling for a stay of execution in the case on December 1. The Commission found that compelling prima facie evidence existed to support Montgomery’s claims of serious, urgent and irreparable harm from the multiple violations of her basic human rights protected by the American Convention on Human Rights.
The ruling came in response to a petition filed by Montgomery’s attorneys alleging five distinct violations of her human rights, including the U.S. government’s continued failure to fulfill its “due diligence” obligations to take steps to protect her from the extensive and sustained child abuse and sexual violence that contributed to her severe mental illness.
“The government failed Lisa Montgomery throughout her life, beginning when state actors failed to protect her after they learned of her rapes,” one of Montgomery’s attorneys, Sandra Babcock, director of the Cornell Center on the Death Penalty Worldwide, told Ms.
“Executing her in the face of the Commission’s ruling would violate the United States’ human rights obligations, as it would prevent the Commission from examining these facts. The government should refrain from rescheduling Mrs. Montgomery’s execution out of respect for this international body, which the United States has long supported.”
Over a thousand organizations and individuals working to combat domestic violence and child sex trafficking have appealed to President Trump to commute Montgomery’s death sentence to life imprisonment. The Trump administration’s silence in response to those calls stands in stark contrast to the alacrity with which it has been issuing pardons to those with political connections.
Convicted criminals with close personal or political ties to Trump, such as Paul Manafort and Roger Stone, have been pardoned while the executions of Lisa Montgomery and others have been scheduled at a breakneck pace during President Trump’s lame duck period.
Of President Trump’s 65 pardons and commutations granted thus far, 60 have gone to allies and supporters, some of whom do not meet Department of Justice guidelines for pardon. President Trump has wielded his pardon powers in a blatantly political fashion to absolve cronies rather than to address instances of systemic injustice, which would include Lisa Montgomery, and his actions have drawn criticism.
Montgomery’s mental illness and trauma presents just the sort of situation that the “failsafe” clemency process was designed to root out—and the juxtaposition of her case with those of Trump’s now-pardoned cronies presents a stark and troubling contrast.
A win for Lisa Montgomery is by no means the end of her legal odyssey. The outgoing Trump administration can, on January 1, reset her execution date for as early as Biden’s first full day in office. While some might argue that this situation would present a difficult dilemma for a newly-minted Biden administration, it would actually be a golden opportunity for Biden and his team to indicate that the new administration will be more open to taking a gender-sensitive approach to criminal justice and is more amenable to working within the bounds of the international human rights system.
Thus, Montgomery’s reprieve represents not only a victory for her and her advocates but also may present President Biden with the perfect circumstance to boldly signal a new era, literally from day one.
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