On Christmas Eve, a federal court ruled that the government had acted illegally when it set a new execution date for Lisa Montgomery, the only woman on federal death row. For Montgomery, whose life has been shaped by chronic violence and the failures of those in power to stop the abuse, it was one of the few times the government had ever stepped in to protect her.
Four days later, however, the federal government rescheduled Montgomery’s execution for January 12. If she survives until the inauguration on January 20, she will likely live. President-elect Joe Biden does not support the death penalty.
On December 24, her attorneys, recently recovered from Covid-19, filed Montgomery’s clemency petition, pleading with President Donald Trump to commute her death sentence to life without parole or, at the very least, grant a reprieve so that they could conduct an investigation into the extreme violence, trauma, and trafficking that Montgomery had experienced.
One week later, on January 1, a three-judge panel of the court of appeals vacated the ruling, thus reinstating Montgomery’s execution date. Without intervention at the federal level, Montgomery could become the first woman executed by the federal government in nearly 70 years.
On January 5, the appeal court denied Montgomery’s en banc petition, which asked the entire court to review the panel’s decision. Her legal team is now filing an appeal with the US Supreme Court.
When viewed on its own, Montgomery’s crime is horrific and senseless. In 2004, on the pretense of buying a puppy, Montgomery drove from Kansas to the Missouri home of Bobbie Jo Stinnett, a dog breeder who was eight months pregnant. She strangled Stinnett, cut open her abdomen, and removed her fetus. She took the baby girl home and attempted to pass off the newborn as her own. She was arrested the next day; the baby was returned to Stinnett’s husband.
But her action was the culmination of a lifetime of violence, abuse, and untreated mental illnesses. Her mother, Judy Shaughnessy, drank throughout her pregnancy; she beat and tormented her children, proudly telling an investigator that her daughter’s first sentence was “Don’t spank me, it hurts.” After Montgomery’s father abandoned the family, Shaughnessy married Jack Kleiner, who regularly raped Montgomery. When the family moved to a remote part of Osage County, Okla., Kleiner built a trailer with a separate entrance to Montgomery’s room, where he would rape her. Her mother knew about the sexual assaults, testifying about it in later divorce proceedings, and did nothing to stop it. Instead, according to multiple court documents, she allowed other men to rape her daughter as well.
Again and again other adults—including the divorce court judge, a counselor, and Montgomery’s cousin who was a deputy sheriff—failed to intervene. “Everyone knew what Jack had done to her—but no one helped,” her clemency petition noted.
The abuse continued throughout Montgomery’s adult life and two marriages. She increasingly exhibited signs of mental illness. After the birth of her fourth child, she had a tubal ligation. Her mental health deteriorated further. One night, she woke all four children, put them into the family van, put a diaper on a pet goat, and drove all night to San Antonio to see the Alamo. Even then, no one brought her to a doctor or counselor for treatment.
Despite her sterilization, Montgomery believed she was pregnant on several occasions, going so far as to buy a crib and other baby items. She never told her second husband about her sterilization; instead, in 2004, she told him that she was pregnant. When her first husband threatened to expose her imaginary pregnancy, she drove to Stinnett’s house, killed her, and took her baby.
In 2007, Montgomery went to trial. Her attorney, Dave Owen, initially brought on Judy Clarke, a renowned capital defense attorney, as part of the defense team. Clarke began building a team to mount a defense based on Montgomery’s life-long history of extreme abuse and sexual violence, post-traumatic stress disorder, brain injuries, and mental illnesses. But Owen bristled at Clarke’s leadership and had her dismissed from the team. He then brought on Frederick Duchardt, an attorney The Guardian would later call “the [death row] lawyer who keeps losing.”
At trial, the defense presented nearly no evidence of the violence Montgomery had suffered. They called Montgomery’s half-sister, Dianne Mattingly, who had also suffered abuse and been raped repeatedly by friends of her stepmother. When she was 8 years old, Mattingly was removed from the home, because her stepmother lacked legal guardianship. (The girls’ father had, by then, abandoned them.) Mattingly remembered vomiting in the social worker’s car when she realized that she was leaving her sister to endure the same abuse and sexual violence that she had just escaped. That was the last time she saw her baby sister until her trial decades later. It was her first time testifying in court, and no one had prepared her. “I didn’t know what I was allowed to say and what I’m not allowed to say,” Mattingly told me. On the stand, no one asked her about the violence and rapes she had experienced in her stepmother’s home.
Prosecutors downplayed Montgomery’s previous abuse by her mother, stepfather, and husbands. Montgomery was convicted and sentenced to death. She is not only the sole woman on federal death row, but also the only woman sentenced to death for such a crime. There are at least 18 other women who, like Montgomery, suffered a lifetime of abuse and killed pregnant women to steal their fetuses. None faced the death penalty; state prosecutors of two of these women even wrote a letter calling for Trump to commute her sentence.
“We have not seen any other case in which lawyers have failed so spectacularly at presenting evidence that was at their fingertips,” said Sandra Babcock, faculty director of the Cornell Center on the Death Penalty and the attorney who filed for a stay of execution when Montgomery’s attorneys were stricken with Covid-19. Babcock filed a petition with the Inter-American Commission on Human Rights on the grounds that Montgomery’s debilitating mental illness and lack of competent counsel are violations of her human rights. The petition also charged that state actors (such as the divorce court judge and the deputy sheriff) failing to intervene in Montgomery’s abuse, her current conditions of confinement (she’s under 24-hour watch by video camera and male officers), and scheduling her execution during a pandemic so that she has less access to courts and the clemency process constitute violations of her human rights.
On December 1, the Commission called on the United States to stay Montgomery’s execution. The Trump administration has thus far ignored that call.
At the same time, Covid-19 is sweeping through the federal prison at Terre Haute, Ind., where all federal executions take place. The prison currently has 336 confirmed cases among its prisoners, including at least 14 of the men scheduled for execution. At least nine prison staffers who participated in executions have contracted Covid-19. Even transporting Montgomery from the federal prison in Fort Worth, Tex., to Terre Haute brings additional risk of coronavirus exposure both to her and to the federal marshals assigned to guard her. “The Department of Justice can choose to withdraw the execution date if they believe the Covid-19 pandemic poses too much of a risk,” said Kelley Henry, Montgomery’s attorney. “We know these executions are super-spreader events.”
Montgomery’s clemency petition rests on the willingness of Trump, whose administration cut funding for trafficking survivors to clear their criminal records and who has been accused by over two dozen women of sexual misconduct, to find compassion for Montgomery. Fortunately, he is not the only avenue of relief.
In addition to the appeal to be filed before the US Supreme Court, Babcock said that there was one argument that had been presented before the US District Court but not decided. According to the Federal Death Penalty Act, the federal government must implement the sentence following the law in the state where the crime took place. In Missouri, the law requires at least 90 days notice for an execution and that the state not be required to execute more than one person per month. Montgomery’s execution, scheduled less than 60 days, will be the first of three federal executions in January before Trump leaves office. When issuing his original stay of execution, the district court judge did not address that argument; now, Montgomery’s attorneys will ask him to do so.
Meanwhile, Lisa Montgomery remains in prison, uncertain whether she will be killed on January 12. It’s another torment in a life saturated with trauma.