Lisa Montgomery is the only woman on federal death row and is scheduled to be executed by lethal injection in Indiana on Dec. 8. She was convicted in 2007 of strangling a woman who was eight months pregnant and kidnapping the baby, who survived the attack. Montgomery’s legal team blames Attorney General William P. Barr for scheduling the execution in the middle of a pandemic.
“They are sick because Defendant Barr recklessly scheduled Mrs. Montgomery’s execution in the middle of the Covid-19 pandemic. But for Barr’s action, counsel would not have been stricken with the disease that is ravaging the country,” asserts the complaint, filed Thursday in U.S. District Court in Washington for Montgomery by Cornell Law School’s International Human Rights Policy Advocacy Clinic.
A spokeswoman for the Justice Department did not immediately respond to a request for comment.
Montgomery’s defense team — federal public defenders Kelley Henry and Amy Harwell — flew from Nashville to Texas late last month to prepare Montgomery’s request to commute her sentence to life in prison. Each round trip involved two flights, hotels and interactions with prison guards and airline passengers.
Soon after, both women tested positive for the coronavirus, the filing shows.
The lawyers have “debilitating fatigue that prevents them from working on Mrs. Montgomery’s clemency application. They have a range of other symptoms as well, including headaches, chills, sweats, gastrointestinal distress, inability to focus, and impaired thinking and judgment,” according to the brief.
The infection following the lawyers’ visit comes as prisons and jails throughout the country have, according to advocates, become public health threats during the pandemic. More than 173,000 inmates nationwide have tested positive for the coronavirus and nearly 1,300 have died, according to the UCLA Law Covid-19 Behind Bars Data Project. Law enforcement officials have taken steps to shrink the prison populations, but the measures vary.
The federal women’s prison in Fort Worth, where Montgomery is held, has seen one of the nation’s largest outbreaks, with more than 520 inmates testing positive — about one in four held there — and six dying since April.
Until this year, the federal government had not executed a death row inmate since 2003. Last summer, Barr announced that the Justice Department had adopted a new lethal-injection procedure and set dates for five inmates. Those plans were slowed by legal challenges to the protocol, but eventually upheld in court. The Justice Department carried out three executions in four days in July.
The Cornell lawyers asked U.S. District Judge Randolph D. Moss to issue an injunction that will give Montgomery, whom they called “a person with a profound mental illness,” more time to prepare a clemency petition with in-person, “untrammeled access to counsel and expert assistance.”
“Mrs. Montgomery’s lawyers now are in bed as I speak, they are really not functional,” Cornell law professor Sandra Babcock told the judge at a hearing Friday. The government’s Monday deadline to file her clemency petition, including a possible extension to Dec. 1, “is not feasible given their illness and the strictures under which they are working.”
Moss gave the government until midnight Sunday to respond and set a hearing for 2 p.m. Monday. But he warned he was troubled by the question of “whether the courts or Congress will have any role to pay in the clemency process,” and “whether there is something unique about the death penalty” on due process or constitutional grounds or that would permit a court to regulate a “president’s absolute pardon power.”
Arguing for the Justice Department, Assistant U.S. Attorney Alan Simpson of Kansas City said the case should be consolidated with another pending request before a different federal judge in Washington filed for Montgomery by lawyers with the American Civil Liberties Union and Morgan, Lewis & Bockius.
Simpson argued that both cases revolve around Montgomery’s confinement conditions and her mental status, and that separate judges could rule in “conflicting or perhaps troubling ways.” He added, “A core issue in this case is going to be whether remote telephone access [to counsel] is sufficient, and I anticipate that . . . plaintiffs will allege it turns on her particular mental status.”
Before their visits with Montgomery in Texas, both public defenders had been required to work remotely in accordance with guidelines from the Centers for Disease Control and Prevention. After Montgomery’s execution date was set, their supervisor reluctantly allowed them to travel, the filing says.
Montgomery suffers from severe mental illness, according to the filing, and the lawyers have spent years earning her trust. Her symptoms have deteriorated, according to the filing, and the lawyers “spent hours trying to calm her, explain the status of her case, and ascertain her current mental health status” during their visit.
“Mrs. Montgomery’s mental health — and the extent to which she is able to grasp what is happening to her — lies at the core of her efforts to obtain a reprieve and a commutation of her sentence to life imprisonment,” the Cornell filing says. “This is particularly vital since, as a result of the pandemic, the mental health experts who have evaluated Mrs. Montgomery in the past are unable to travel to the prison.”
In the other case, the ACLU and Morgan, Lewis lawyers asked U.S. District Judge Trevor N. McFadden to release Montgomery from “uniquely harsh” conditions at the Fort Worth prison and bar her transfer to an all-male federal penitentiary at Terre Haute, Ind., for execution.
Montgomery suffers from hallucinations, psychosis and depression after decades of rapes, beatings and sexual torture by her stepfather, his friends, her mother and the son of her mother’s boyfriend, her lawyers argued. After Montgomery’s execution notice on Oct. 16, prison officials moved her to a cold, constantly lighted cell where male guards observe when she uses the toilet; replaced her underwear, bra and socks with a loose gown with Velcro straps and mesh underwear; and took away all of her belongs including books, legal papers and photos of her children, they asserted.
These conditions are harsher than those for men held with pending execution dates or women under suicide watch at Federal Medical Center-Carswell, a prison for women with special health and medical needs, her lawyers argued. They said the conditions “would be cruel for any prisoner. But for Mrs. Montgomery, the conditions amount to torture,” reinforcing her sexual trauma and aggravating her mental illness to the point of a breakdown.
At a separate scheduling hearing Friday, McFadden set briefing to be completed by Nov. 23, but questioned why the Cornell lawyers did not file notice of their related case. Moss said he would also consider the question.