The sole federal execution chamber in the United States is in a place called Terre Haute—the high ground—in far western Indiana, named for a swath of land that rises above the nearby Wabash River. The surrounding country is in fact flat and wide, precipitously exposed to the sky.
The prison complex—south of downtown via Route 150, past the dome and bell tower of the Vigo County courthouse, and after the Tire Barn on Spring Hill Road—comprises the medium-security Federal Correctional Institution and the maximum-security U.S. Penitentiary, the home of the Special Confinement Unit: death row and the death house, a low, windowless building of dark-red brick on the northern edge of the grounds.
Terre Haute was selected as the site for federal killings in 1993—amid a rise in capital sentencing following a twenty-year lull—because of its central location in the country. The death chamber there was first used in 2001, in the execution of Timothy McVeigh, the Oklahoma City bomber, who was killed by what is now considered the traditional lethal-injection cocktail of three drugs: sodium thiopental, an anesthetic; pancuronium bromide, a muscle relaxant that effects asphyxiation; and potassium chloride, a salt that causes cardiac arrest. The anesthetic effect of the first is understood to be short-lived; the last, it has been claimed in court, feels as though one is “being burned alive from the inside.”
McVeigh’s was the first federal execution in thirty-eight years. Following him, the chamber was used twice more under the George W. Bush Administration, and then left idle for almost two decades.
In July 2020, the Trump Administration resumed federal executions, and in its final seven months killed thirteen people, more than had ever been put to death by the federal government in so brief a period. It was the most in a year since 1896—including an unprecedented five lame-duck killings—and more than all the states combined in the same year, a feat never before achieved. And the undertaking was even more nasty and hurried than the numbers convey, the executions rammed forward at each closed door by an administration that would forever be known for such force.
I arrived in Terre Haute on January 15, the day of the last scheduled killing, and what would possibly be the final federal execution of the modern era. In five days, Joe Biden would take office and the death chamber would be stilled again: no executions could take place without his approval and he had made his position clear. Though he’d supported the penalty in his tough-on-crime years and as late as the Aughts, as a candidate in 2020 he’d promised to end capital punishment at the federal level and to push states to follow suit. His selected attorney general, Merrick Garland, had been the lead official in the Department of Justice who pursued and secured the death sentence for McVeigh, but he too had turned with the times. The realities of the penalty’s application over the intervening twenty years, he would soon note in his confirmation hearing, had given him “great pause.”
Twenty-two states already prohibited the penalty, and twelve others hadn’t carried out an execution in more than a decade. In late 2019, polling showed for the first time that a majority of Americans supported life in prison over death sentences. A few days before I traveled to Terre Haute, Representative Ayanna Pressley and Senator Dick Durbin announced a joint bill to end the penalty, endorsed then by more than seventy others in Congress.
The man scheduled to die last was Dustin John Higgs, a forty-eight-year-old black man, whom the role seemed to fit no more than any other person on death row. His sister Alexa Cave-Wingate had asked her whole church to pray. “Just give me six days,” she told a reporter on Thursday, January 14. “I don’t care if it’s a stay or a reprieve, whatever. Six days is all I pray for.”
On the lobby level of the Terre Haute Marriott, on Friday morning, Shawn Nolan, Higgs’s lead attorney, could be seen using the printer and scanner of the hotel’s business center to handle the day’s appeals. Higgs’s spiritual adviser, Yusuf Nur, the only person who could accompany Higgs into the death chamber, sat nearby, not far from Alexa, who was being interviewed by a reporter. Activists wandered through, on their way to the picket across the street from the prison, about a five-minute drive south. It was rumored that the executioners—private contractors from out of town, who were paid in cash—were staying at the hotel, too. During the first spate of executions, in the summer, guests had seen an unmarked white van—the same as those used by the Bureau of Prisons—pick up a group of men “looking,” they said, “like Blackwater dudes.”
I greeted Nolan quickly, as he was busy with the details of a filing. He was unshaven and wearing a green fleece he’d had on for two days. The night before, the Supreme Court had rejected, without explanation, a claim on behalf of Higgs and Corey Johnson—the second-to-last inmate scheduled to die—that lung damage both men had sustained from COVID-19 infections would aggravate the already torturous experience of lethal injection. (By mid-January, death-row lawyers believe, at least twenty-nine of the remaining forty-seven inmates had contracted COVID-19.)
Higgs now had two outstanding lawsuits—one regarding information improperly withheld during his trial, and another appealing to a federal law requiring that prisoners be executed under the rules of the state in which they were sentenced. Higgs was sentenced in Maryland, which had abolished the death penalty in 2013, presenting a substantial legal question never before addressed in the courts. Nolan had previously brought this issue to the Fourth Circuit, which agreed it needed consideration and granted a stay of Higgs’s execution and an appeal hearing, set for January 27. But the DOJ had intervened and asked the Supreme Court to bypass the Fourth Circuit—to rule “before judgment”—a capability intended to be used, according to the court, in cases of “imperative public importance.” Nolan told me that granting the request in the case of an execution would be unheard of, and on Friday morning he believed the Supreme Court might leave the Fourth Circuit decision, and the stay, untouched. He filed a response in opposition to the DOJ.
Nolan had watched as each of the twelve inmates before Higgs had lost their appeals and had their lives dispatched like paperwork. But when I spoke to him again later in the day, he sounded strikingly upbeat. I was in my car, parked in front of a white clapboard house, on a dirt route called Justice Road, which I would later learn led directly to the death house. It was blocked about a hundred yards ahead by an unmarked car and two guards armed with long guns. “If this goes well tonight,” Nolan said, at the other end of the line, “come drink some wine with us in the lobby.”
Through public notices and court-ordered depositions, Trump’s DOJ claimed that there had been a rational process behind the selection of the inmates to be killed. The true calculations, however, have remained opaque. In January 2020, when lawyers representing different death-row defendants deposed Bradley Weinsheimer, a deputy attorney general, Weinsheimer stated repeatedly that the BOP had found these prisoners to have “exhausted their appellate and post-conviction remedies.” However, depending on the intent, this was either a narrow legal distinction, which said nothing of appeals that might arrive due to newly introduced evidence or arguments, or it was an assessment the government could not make. In fact, eight of the thirteen people ultimately selected had appeals in process when their execution dates were announced. And as new challenges and stays ran up against the appointed execution dates and times, the Supreme Court consistently voted to dismiss litigation and heed the calendar set by the DOJ. Wesley Purkey, who died on the morning of July 16, in the first week of executions, was killed while an appeal was still pending—that is, before the court had even dismissed it. Pieter Van Tol, who was part of a team of attorneys who deposed Weinsheimer, told me, “I have never been more afraid of the government than I was after those seven months.”
In DOJ communiqués, the original five inmates Barr named for execution were said to have been chosen because they had harmed “the most vulnerable in our society—children and the elderly.” This held up somewhat but not entirely, and when Weinsheimer was pressed on this, he recited the words from the department’s public notices repeatedly—it was “like a mantra,” a defense lawyer present told me. For Barr’s revised, June 2020 list of names, the DOJ stated that all had been convicted of “murdering children.” But this still was not wholly correct. And these goalposts moved as the year went on. When the execution dates for inmates Lisa Montgomery and Brandon Bernard were announced in October, the claimed criterion had become that of crimes that were “especially heinous,” a phrase that has appeared at some point in the capital-sentencing statutes of at least nineteen states, and has long been criticized as vague. While some states defined this standard for their purposes, the DOJ did not. A defense attorney who has worked with dozens of death-row inmates told me that the prisoners were terrified as the names were drawn. “These are people thinking,” she said, “There but for the grace of God go I.”
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Click here to read the full article, Caroline Lester, May 2021 Issue
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
