Montgomery’s attorney, Kelley Henry, who had argued she is too mentally ill to understand her death sentence, criticized the Trump administration for pushing forward with her execution.
“Our Constitution forbids the execution of a person who is unable to rationally understand her execution,” Henry said in a statement. “The current administration knows this. And they killed her anyway. Violating the Constitution, federal law, its own regulations, and longstanding norms along the way.”
Montgomery’s lawyers had raced to federal appeals courts in the D.C., Chicago and St. Louis in attempts to delay the execution because a pause of even a few days could have a significant effect on Montgomery’s fate.
The administration has been determined to restart federal executions for the first time since 2003 and resumed them last year. It has since carried out 10 federal executions, the most in a single year in the United States in decades.
President-elect Joe Biden opposes capital punishment and has pledged to push to eliminate the federal death penalty. He is expected to pause executions after he takes office next week.
The executions of two other death-row inmates scheduled for Thursday and Friday were temporarily delayed. A federal judge in Washington said Cory Johnson and Dustin Higgs should first be allowed to recover from covid-19 contracted in prison.
Montgomery, 52, was convicted in 2007 of a grotesque crime: strangling a Missouri woman who was eight months pregnant, and cutting the baby from her abdomen. The infant survived and was raised by her father.
Montgomery’s lawyers say her horrible crime was preceded by years of abuse and mental illness. Doctors who have examined Montgomery say she has bipolar disorder and brain damage; she has said that God speaks to her through connect-the-dot puzzles, according to court affidavits. Her mother abused her and her stepfather repeatedly raped her, her lawyers say.
But in papers filed with the Supreme Court, acting solicitor general Jeffrey B. Wall said Montgomery understands her crime and coming punishment, and that courts should not delay a death penalty that has been pending for years.
The Supreme Court set aside a decision by the U.S. Court of Appeals for the D.C. Circuit that would have delayed a hearing in Montgomery’s case until after the inauguration.
The high court was weighing orders from two other courts.
The U.S. Court of Appeals for the 7th Circuit said Montgomery’s execution could proceed. It overturned a judge’s order seeking to review whether Montgomery’s mental illness and history of sexual abuse as a child bar her from being put to death under the Eighth Amendment.
The U.S. Court of Appeals for the 8th Circuit sided with Montgomery and put the execution on hold based on her claims that the scheduled date violates the sentencing court’s judgment.
Montgomery’s execution date was initially delayed after two of her lawyers fell ill with the coronavirus after traveling to visit her in prison. She was scheduled to be executed at 6 p.m., having been moved Monday from a women’s prison in Texas to the federal execution facility in Indiana.
Members of the victim’s family have traveled to Indiana to witness the execution and, according to the Justice Department, it should not be canceled at the “eleventh hour.”
“The victim’s family, her community, and the Nation ‘deserve better,’ ” the government said.
The Supreme Court has rejected previous attempts to stop the Trump administration from carrying out federal executions using a new lethal-injection protocol.
The order from the full D.C. Circuit reversed an initial three-judge panel decision that had allowed the execution to proceed. Writing for the panel majority, Judge Gregory Katsas rejected Montgomery’s claim that when it comes to scheduling executions, the federal government must follow the law of the state in which the death row inmate was convicted. Montgomery’s lawyers argue that her date is inconsistent with Missouri law and violates the Federal Death Penalty Act.
The full court sided with Judge Patricia A. Millett, who dissented in the panel ruling and noted that Missouri law requires 90 days notice between the scheduling of an execution and the execution itself.
Four judges, including three nominated by President Trump, indicated they would not have granted the stay.
Judges Cornelia T.L. Pillard and Merrick Garland, who has been nominated as Biden’s attorney general, did not participate in the ruling by the full court.
Montgomery had also petitioned the president for clemency.
Mark Berman contributed to this report.