The federal government has not fully halted preparations for Tuesday’s scheduled execution of Lisa Montgomery, the only woman on federal death row, despite multiple stays on the execution. Montgomery’s lawyers claim their client is not “competent” to undergo an execution because she is mentally ill. 

On Monday night Montgomery was moved from a Texas federal prison, where a COVID-19 outbreak killed six people, to the federal prison in Terre Haute, Indiana, that is home to the federal execution chamber and is in the midst of a massive outbreak. That same evening, a district court in Indiana halted her execution pending a hearing to evaluate Montgomery’s mental state. The 1986 Supreme Court case Ford v. Wainwright established that executing mentally ill incarcerated people who lacked “competency” to understand the punishment was unconstitutional. 

“Mrs. Montgomery is mentally deteriorating and we are seeking an opportunity to prove her incompetence,” Kelley Henry, an attorney for Montgomery, said in a statement Monday night. 

Montgomery’s legal team has previously argued that Montgomery was in the midst of a dissociative psychotic episode when she killed Bobbie Jo Stinnett, a pregnant woman, and kidnapped the child that she cut from Stinnett’s stomach in 2004. Montgomery endured years of sexual assault, rape, physical and mental abuse, and her own mother trafficking her to pay roofers, plumbers and other handymen, according to her clemency petition. 

After she was imprisoned, the Federal Bureau of Prisons diagnosed Montgomery with bipolar disorder, depression and post-traumatic stress disorder. Her symptoms manifest as dissociation, losing contact with reality and with who she is. Sometimes Montgomery had bouts where she thought she was pregnant, a condition called pseudocyesis. Her attorneys argue that the crime may never have happened had Montgomery received treatment and medication sooner, or been able to afford the few counseling sessions she had pre-incarceration. 

“I am in prison because what I did was wrong,” Montgomery said during a mental health evaluation carried out upon her arrival to prison in 2008. “It was a series of events that led to one bad day.”

Cassandra Stubbs, director of the ACLU’s Capital Punishment Project, said that if Montgomery’s execution happens Tuesday night without a competency hearing, it will be a “mockery of the Constitution.”

“If this execution goes forward tonight it will be a total tragedy and absolutely lawless,” Stubbs said. “It is far beyond the bounds of what the Constitution would permit to allow that execution to go forward without even the hearing that the federal district court in Indiana has ordered on her incompetence.” 

Justice Department lawyers appealed the stay to the 7th Circuit Court of Appeals Tuesday and demanded an emergency ruling, claiming that Montgomery “sandbagged the government and the courts” by filing a “last-minute” request for a competency hearing, court documents read. 

“The district court erred by rewarding her egregious ploy to evade her lawful death sentence,” the emergency motion reads. Tuesday, the Indiana district court denied the Justice Department’s request to vacate the stay as their appeal of the stay moves through the courts.

Montgomery’s execution is scheduled to come just eight days before a new administration, one that has committed to ending the federal death penalty, takes office. In the clemency petition, her attorneys say that the Department of Justice “plucked Lisa Montgomery out of sequence to leapfrog her execution over others.” It noted that 30 other death row inmates have convictions that predate Mongtomery’s. 

Robert Dunham, executive director of the Death Penalty Information Center, a national nonprofit that provides information and analysis on death penalty issues, says his center does not take a position for or against the death penalty, but he has been critical of the way it has been administered lately.

“The timing of the competency petition is entirely a product of the federal government’s decision to schedule an execution very close in time to the date in which the notice of execution was issued,” Dunham said. “And to do so in the midst of a pandemic when it is medically impossible to to conduct the investigation necessary, without placing people’s health and lives at risk … an assertion of sandbagging is grossly disingenuous.” 

At press time, the Terre Haute prison has only delayed Montgomery’s execution date by an hour, as officials continue to monitor pending appeals. Montgomery’s attorneys also have a pending case before the Supreme Court, asking the highest court to stay the execution, while Trump’s acting solicitor general asked the justices to uphold the execution to secure “finality and justice at long last,” court documents read. 

Montgomery was originally supposed to be executed on December 8, but a federal district court gave her attorneys more time to file a clemency application after they were diagnosed with COVID-19 shortly after visiting Montgomery in prison. While that stay was in place, the Justice Department and the Federal Bureau of Prisons reset Montgomery’s execution date for January 12. 

On Saturday, Montgomery’s attorneys asked the Supreme Court to weigh in on whether the Justice Department had the authority to reset the execution date with a stay in place.

“The United States Supreme Court has allowed every execution so far to go forward on increasingly partisan lines,” Dunham said. “So, essentially what it comes down to is, is the United States Supreme Court a fair and neutral arbiter of death penalty issues or has it become a rubber stamp for executions? That’s not something that we will know until this plays out.”

Monday night, in another ongoing case, the U.S. Court of Appeals for the D.C. Circuit issued a stay on Montgomery’s execution, with the promise of an en banc, or full court, hearing on a “highly expedited basis.” However, filing deadlines with the appeals court fall after the Biden administration is in office. Merrick Garland, a judge with the D.C. appeals court and Biden’s pick to run the Department of Justice, did not participate in the Monday night stay ruling. 

The Trump administration has executed 10 death row prisoners in six months after a 17-year lapse in the practice. Every single one has been carried out during the pandemic. Montgomery’s execution date falls amid deliberations in Congress to impeach Trump for inciting an insurrection. This fall marked the first time a lame-duck president’s administration executed prisoners in more than a century, according to the Death Penalty Information Center. The last time the federal government executed a woman was in 1953. 

“We’ve never seen the modern outgoing president try to set execution dates after his agenda was voted down by the American public,” Stubbs said. “We’ve never seen a president try to weigh a clemency petition, while the House of Representatives is actively discussing his removal under Article 25 and impeachment.” 

Approximately 100 people travel to Terre Haute for any given execution, including witnesses, attorneys, media and the staff to carry out the lethal injection. Eight people involved in the execution of Orlando Hall in November tested positive for COVID-19 following his death, according to court filings from a longtime BOP official. 

Montgomery’s attorneys are concerned about her risk of contracting the virus, as she lives with asthma and sleep apnea.

“These executions are super-spreader events,” Henry, an attorney for Montgomery, told reporters on January 5. “How many people could die, literally die, because of this decision to carry out an execution during a pandemic? It is frankly irresponsible.” 

Currently, the virus is spreading rampantly in the federal prison. Two prisoners there have died of COVID-19, 103 prisoners currently have the virus and more than 600 have recovered from it. Five Terre Haute staff members currently have COVID-19. 

In two of the executions carried out last summer, one man was strapped to a gurney for hours as attorneys sought the final documentation needed to execute him, and another was given a lethal injection as his attorneys filed an appeal, which courts later dismissed as “moot” because he’d already died. Dunham thinks that with Montgomery’s ongoing appeals, her execution may be delayed until the middle of the night, but that the Justice Department and the federal Bureau of Prisons will ultimately prevail. Two more men are scheduled to be executed later this week. 

“Saying it’s chaotic would be an understatement, but this is chaos that was intentionally wrought from the Department of Justice,” Dunham said. “The entire strategy has been throughout the course of this execution spree to deny the courts sufficient time to meaningfully consider the legal issues in the cases.”