On December 14, 2020, Dustin Higgs, age 48, began to experience fevers, cough, shortness of breath, malaise, and a headache. Shortly thereafter, a test confirmed that he, like millions of other Americans, had COVID-19.
Higgs is familiar with the experience of shortness of breath as he suffers from life-long asthma. On a normal day, he uses an albuterol inhaler upon awakening and an additional 3 to 4 times daily. Higgs also uses a daily steroid inhaler to manage his asthma symptoms.
Since his diagnosis of COVID-19, worsening shortness of breath requires Higgs to use his albuterol inhaler more frequently but with minimal relief. Apart from asthma, Higgs has longstanding mitral valve regurgitation. For this problem, he was prescribed a fairly standard treatment of lisinopril and the diuretic hydrochlorothiazide. Despite such health complications, a COVID-19 patient like Higgs normally could expect to be ill for a few weeks and then probably recover.
Higgs, however, will have a different course as he will most likely die this Friday. He is on death row in a federal prison and is via lethal injection with 5 grams of pentobarbital.
He contends that his exposure to COVID-19 must have been from a prison correction officer, as he has no cellmate and has no access to other inmates – a level of restriction typical for those scheduled for execution in the near future.
If Higgs's execution by pentobarbital injection comes to pass, his recent experience with COVID-19 will make even more painful a death we already know to be excruciating.
In the majority of individuals executed by pentobarbital, the result is death in a manner similar to drowning. Frothy pulmonary edema fills the lungs, likely as a consequence of the toxic effect that such a large quantity of pentobarbital has on the delicate membrane that separates alveoli from the blood flowing within the lungs.
We know this because a review of autopsies of individuals executed by pentobarbital showed pulmonary edema and was first reported as evidence to the courts in 2017. When one witnesses an execution, pulmonary edema may be manifest as coughing or other displays of distress. If the execution technique also employs a paralytic, the outward display before death is rendered entirely unremarkable. But since any restriction in the experience of breathing can produce symptoms including severe anxiety, pain, and extreme stress, we know that the experience of death by lethal injection – imagined by some as a gentle and painless form of execution – is anything but.
The Eighth Amendment of the U.S. Constitution prohibits any form of punishment that is cruel. Higgs is now in court requesting not to be killed in the particular manner that is currently planned.
To prevail, the law requires him to prove that in the setting of his current affliction with COVID-19, the federal lethal injection method utilizing pentobarbital will subject him to a particular sort of death that will be cruel. In the law, this is referred to an "as applied" challenge -- the method of execution will be cruel as applied to Higgs.
COVID-19 is primarily a respiratory disease and it is without dispute that COVID-19 can damage the lungs. Higgs claims that his damaged lungs, when combined with an execution method that is known to kill by lung damage, will most certainly cause him to experience a needlessly painful death.
This death also qualifies as cruel because the federal government and the court know that pentobarbital lethal injection causes death by drowning in one's own pulmonary edema and that Higgs has lung damage at baseline made worse by COVID-19. To be clear, death by pentobarbital injection is always cruel by this standard; in Higgs's case, it would be particularly egregious.
Debates about capital punishment raise the ire of us all. For some, the premeditated and senseless killing of another person attacks our hopes of a civil society. They may argue that those who murder are commonly themselves victims of an unfair system that selectively targets things like class, race, and poverty, and that this knowledge should shape our approaches to punishment.
By contrast, others argue that for those who murder, no mercy is owed -- any punishment, including cruelty, is justified. Some of these claim that if execution as a punishment is set aside, the alternative punishment of life without parole is still a life of freedom that the murdered victim can never have, such that execution is a needed and appropriate form of punishment.
Conversations about how, specifically, to kill an inmate might seem to some beside the point of these deeper questions about the rightness or wrongness of capital punishment. Yet Higgs is not arguing about such deeper questions; in fact, he accepts for the moment that he will indeed die as a result of execution.
According to the law, to win his current case Higgs must provide a feasible alternative method of execution that he deems would not be cruel. In his argument, Higgs provides the court with three suggested methods of how he should be killed. The first suggestion is that he be pre-treated with opioids to a degree that the experience of the pain of dying be blocked. The second method is that he instead be put to death by a firing squad. The final suggestion is that he at least be allowed to fully recover from COVID-19 before being executed by pentobarbital.
Time is of the essence. We are poised to hand over the current government to a new administration (with a different view on capital punishment) on Jan. 20, but Higgs must bargain with the current government and also the current U.S. Supreme Court that will not change.
Higgs's case is not singular. Cory Johnson, scheduled for execution on Jan. 14, is also currently ill with COVID-19. While the known physiological effects of high-dose pentobarbital injection make it unquestionably cruel under any circumstances -- a truth that should lead the new federal administration to outlaw its use in executions at large – the use of pentobarbital in the setting of COVID-19 guarantees a particularly painful death and as such represents untenable cruelty.
The fact that, based on currently available medical knowledge, an inmate would rather undergo death by firing squad than the supposedly relatively humane option of lethal injection reveals this with utter clarity.
, is at Emory University School of Medicine in Atlanta and is serving as an expert witness for Higgs's defense. His clinical expertise and research interests include care of critically ill patients in the OR and ICU, education, and scholarly work in bioethics, the anthropology of conflict resolution, pharmaco-economics, and a variety of topics related to anesthesiology/critical care monitoring and practice.