United States v. Higgs
The Supreme Court cleared the way for the execution of Dustin Higgs — the thirteenth federal prisoner put to death in six months — by reversing a lower court that had blocked the government from switching the state whose laws would govern his execution, and by vacating a stay the Fourth Circuit had granted.
Three justices dissented sharply, with Justice Sotomayor cataloguing what she called an unprecedented rush of federal executions carried out before serious legal questions were resolved, and Justice Breyer questioning whether the death penalty itself can be administered constitutionally.
How it got here: The district court denied the government's motion to designate Indiana; the Fourth Circuit stayed the execution and set oral argument; the government asked the Supreme Court to bypass the Fourth Circuit and act immediately.
The Case in Depth
What happened
Dustin Higgs was sentenced to death in Maryland in 2001 for his role in kidnapping and killing three people. By 2020, Maryland had abolished the death penalty, so the government could no longer carry out the sentence under Maryland law as federal statute requires. The government asked the trial court to amend its judgment to designate Indiana — where all federal death-row prisoners are held — as the governing state, but the trial court said it had no power to change its original order.
The question before the Court
After Maryland abolished the death penalty, could the federal government force courts to immediately redesignate Indiana to govern a federal prisoner's execution — bypassing the normal appeals process to proceed the same night?
The Court's answer
Yes — the Court reversed the district court and directed it to designate Indiana as the alternate state under the Federal Death Penalty Act. The district court had concluded it lacked authority to modify its original sentencing order, but the Supreme Court rejected that conclusion and sent the case back with instructions to make the designation promptly.
The Court also granted the extraordinary remedy of hearing the case before the Fourth Circuit had a chance to rule — bypassing normal appellate procedures — and simultaneously vacated the stay the Fourth Circuit had put in place, allowing Higgs' execution to proceed that evening. Because the per curiam order provides no written reasoning, the full legal basis for these decisions is not explained in the opinion itself.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
The ruling confirmed that when the state where a federal prisoner was sentenced has abolished the death penalty, courts can be directed to designate an alternate state to govern the execution. It also accelerated Higgs' execution that same evening by vacating a stay, and it drew forceful dissents arguing the Court repeatedly let executions proceed without meaningfully resolving difficult constitutional and statutory questions.
What changes now
Dustin Higgs was executed on January 15, 2021. The case was sent back to the district court solely to formally designate Indiana as the governing state — a step that had already been effectively resolved. The broader legal questions highlighted in the dissents — including how federal law defines the 'manner' of execution, whether modern intellectual-disability standards apply, and the constitutionality of the 2019 single-drug execution protocol — were left unresolved.
What this does not decide
The Court did not address whether executing Higgs while he was suffering COVID-19 lung damage constituted cruel and unusual punishment, nor did it resolve recurring disputes about the Federal Death Penalty Act's requirements, the constitutionality of the government's single-drug execution protocol, or — as Justice Breyer raised — the constitutionality of the death penalty itself.
Concurrences and dissents
Dissent — Justice Breyer
Justice Breyer argued that the Court should not have bypassed the Fourth Circuit before it had a chance to rule on a novel legal question — a departure from ordinary practice he found unjustified. More broadly, he questioned whether the death penalty can be administered constitutionally at all, pointing to the dilemma that resolving legitimate legal challenges requires delays, while long delays themselves weaken the penological justifications for execution and increase inmates' psychological suffering.
Dissent — Justice Sotomayor
“This is not justice. After waiting almost two decades to resume federal executions, the Government should have proceeded with some measure of restraint to ensure it did so lawfully. When it did not, this Court should have. It has not.”Justice Sotomayor's summary condemnation of the Court's handling of the government's accelerated execution schedule.
Justice Sotomayor offered an extended account of what she called an unprecedented and reckless rush of thirteen federal executions in six months. She argued that the government deliberately set execution dates before courts could rule, and that the Supreme Court repeatedly intervened to lift stays and allow executions to proceed without resolving serious questions about the Federal Death Penalty Act, the single-drug execution protocol, intellectual-disability protections, competency standards, and inmates' Brady rights. She concluded: 'This is not justice.'
How the Court got there
The legal reasoning, step by step
- The Federal Death Penalty Act, 18 U.S.C. §3596(a), requires that a federal death sentence be carried out 'in the manner prescribed by the law of the State in which the sentence is imposed.' If that state no longer permits executions, the Act directs courts to designate an alternate state that does — making the designation a legal obligation, not a discretionary act.
- Maryland permitted executions when Higgs was sentenced in 2001, so no alternate state was named in the original judgment. After Maryland abolished the death penalty, the government moved to amend the judgment to name Indiana. The district court denied the motion, reasoning that it had no power to reopen and modify a final criminal judgment.
- The Supreme Court concluded — without written explanation — that the district court was wrong and that the designation of Indiana was legally required under §3596(a). The case was sent back with instructions to make that designation promptly, resolving the narrow question of whether the court had authority to act.
- Separately, the Court invoked Rule 11 — the standard for certiorari before judgment, which permits the Court to hear a case before the court of appeals has ruled only when the matter is of 'imperative public importance' — and determined the standard was satisfied here, allowing it to act before the Fourth Circuit completed its scheduled review.
- The Court also granted the government's application to vacate the Fourth Circuit's stay of execution. The combined effect of granting cert before judgment, reversing the district court, and lifting the stay was to authorize Higgs' execution to proceed that same night.