International Law is Clear: the U.S. Must Stay Lisa Montgomery’s Execution

[Parisa Zangeneh is a PhD student at the Irish Centre for Human Rights at the National University of Ireland, Galway and the Editorial Assistant of Opinio Juris, and Sharon Pia Hickey is an international human rights lawyer focusing on the death penalty, gender equality, and the rule of law. Both authors are former employees of the Cornell Center on the Death Penalty Worldwide.]

Lisa Montgomery, a severely mentally ill women on federal death row in the United States of America (U.S.), is scheduled to be executed on January 12^th, 2021. Her impending execution illustrates the arbitrariness of the death penalty and implicates the U.S. in acts of torture, cruel, inhuman and degrading treatment and other acts that violate fundamental human rights. This case represents an unfolding example of the U.S.’ failure to adhere to its international legal obligations both in the conduct of Lisa Montgomery’s legal case as well as in its failure to meet its international due diligence obligations to prevent and respond to gender-based violence, especially against women and girls. One would think that the international legal prohibition on executing mentally ill and incapacitated persons and the Inter-American Commission on Human Rights’ (“IACHR”, “the Commission”) issuance of precautionary measures would safeguard Mrs. Montgomery from death, but this may not the case. Considering the potentially grave consequences of the U.S.’s failure to honor its international commitments and obligations, international lawyers should pay close attention to this case as it unfurls. Over 800 practitioners and organizations have signed letters asking President Trump to save Lisa’s life and to comply with precautionary measures (esp. pp. 35-41).

IACHR Precautionary Measures and UN Experts’ Call for Clemency

Lisa Montgomery’s lawyers and the Cornell Center for the Death Penalty Worldwide  (“the Center”) filed a petition to the IACHR on November 5^th, 2020, alleging violations of the American Declaration on the Rights and Duties of Man and requesting precautionary measures to prevent the United States from executing Mrs. Montgomery while her case is pending before the Commission. On November 18^th, 13 days after the request was submitted, the United States submitted its observations to the IACHR. It did not raise substantive legal issues regarding the merits of Montgomery’s case in its submissions to the IACHR (paras. 32-33). Instead, it argued that the case is inadmissible on the grounds of failure to exhaust domestic remedies. (para. 32). Further, the U.S. disputed the authority of the IACHR to grant precautionary measures, since the U.S. is not a party to the American Convention on Human Rights (paras. 32-33).

Nevertheless, on December 1^st, 2020, the IACHR granted precautionary measures in Resolution 91/2020 to prevent irreparable harm to Mrs. Montgomery. The Commission called on the U.S. to “adopt necessary measures to protect the life and right to humane treatment” of Mrs. Montgomery, guarantee detention conditions that meet international standards, and provide medical care for her physical and psychological conditions in line with international standards. These measures, the Commission insisted, should be adopted in consultation with Mrs. Montgomery and her representatives (para. 3).

The IACHR’s precautionary measures were quickly followed, on December 1^st, by a call for clemency in Lisa Montgomery’s case from a coalition of ten UN human rights experts. The experts raised concerns about Mrs. Montgomery’s mental health and fair trial violations in her case, stating “International standards are clear – the death penalty is always arbitrary and unlawful when the court ignores or discounts essential facts that may have significantly influenced a capital defendant’s motivations, situation and conduct […] Shamefully, Ms. Montgomery’s years of sexual abuse and State’s neglect were further compounded by the gender discrimination she faced, pervasive at all stages of the capital proceedings against her.” The statement was signed by UN Special Rapporteurs on Violence Against Women; Extrajudicial, Summary or Arbitrary Executions; the Rights of Persons with Disabilities; Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment; Extreme Poverty and Human Rights; and the Working Group on Discrimination Against Women and Girls.

The U.S. has not yet signalled its intention to abide by the IACHR ruling, but international human rights bodies and experts are clear in their conclusion that executing Lisa Montgomery would be a potential violation of international law. Further, the IACHR and the Inter-American Court on Human Rights have affirmed that carrying out an execution in breach of granted precautionary or provision measures “constitutes an aggravated violation of the right to life” and the right to petition (para. 48).

Lisa Montgomery’s Horrific Life History

Lisa Montgomery is the only women on federal death row. All experts—defense and prosecution—agreed that Lisa was severely mentally ill at the time of the crime, and the crime for which she is sentenced to death reflects the depths of her mental illness and delusions. Lisa had told her current husband that she was pregnant, which her abusive ex-husband knew to be untrue because he and Lisa’s mother had pressured her to into sterilization against her will.  Under threat of exposure and potentially losing custody of her children to her abusive ex-husband, Lisa killed Bobbie Jo Stinnett, a young woman who was eight months pregnant. Lisa cut the baby from her mother’s stomach and pretended that the baby girl was her own (Petition, pp. 17-18).

As set forth in the Cornell petition to the IACHR, “the story of Lisa Montgomery’s childhood reads like the script of a horror movie.” (Petition, p. 7) Under its own domestic and international obligations, the United States was obligated to ensure that Mrs. Montgomery enjoyed a safe childhood. But, despite the awareness of various state actors that she was at imminent risk from family members, (p. 46) Mrs. Montgomery suffered brutal rapes, child abuse, sex trafficking, incest, and torture. (p. 1) According to Mrs. Montgomery’s sister, Lisa was born with brain damage due to her mother’s drinking while pregnant. Lisa’s stepfather raped her continuously. Her mother, Judy, continued the sexual abuse through selling Lisa for sex to numerous men, including the plumber and the gas delivery men, as well as her stepfather Jack’s friends, some of whom reportedly urinated on her when they finished having sex with her. Her sexual abuse included anal, oral, and vaginal rape. Even though at least seven officials—a police officer, a judge, a school administrator, three social workers, and a doctor who was a mandatory abuse reporter—knew about or suspected abuse, no one helped Mrs. Montgomery as a child (pp. 9-11). Dr. Katherine Porterfield, psychologist at the Bellevue/NYU Program for Survivors of Torture at New York City’s Bellevue Hospital, stated that Lisa suffered an “astonishing amount of abuse” for any child to endure. (Petition, p. 26)

Medical professionals have diagnosed Mrs. Montgomery with multiple mental health conditions: Severe Dissociation, Rapid Cycling Bipolar Disorder, multifocal brain impairment, and brain damage (pp. 10, 17, 26-28). She was likely in the grip of psychosis when she committed the offense, and now needs psychotropic medications to control her delusions (pp. 1, 26-27). Besides the IACHR Precautionary Measures, the U.S. is prohibited under international law from executing Lisa, a person with mental disabilities.

In addition to complying with the IACHR precautionary measures, therefore, the U.S. is obliged to implement the prohibition against execution of persons with mental disabilities under international human rights law. An indication of the relentlessness of Mrs. Montgomery’s abuse, she has Complex Post-Traumatic Stress Disorder, often found in survivors of war.

Myriad Human Rights Violations

The IACHR has previously articulated that a “State’s failure to act with due diligence to protect women from violence is a form of discrimination and a denial of their right to equal protection of the law and of the duty to guarantee access to justice” (para. 40).Mrs. Montgomery is entitled to seek adjudication and redress for these human rights violations, and the U.S. is bound to respect this process by upholding the IACHR’s precautionary measures. Additionally, these issues raise immediate, urgent, and pressing concerns regarding whether executing Montgomery would violate the prohibition against torture and would thus place the United States in violation of its international legal obligations (para. 43). The prohibition against torture, a jus cogens norm of customary international law, (paras. 153-157) is mandated by multiple human rights treaties, such as the International Convention on Civil and Political Rights and the Convention against Torture, both of which bind the U.S. Furthermore, execution of Mrs. Montgomery would increase the severity of the U.S.’ planned violation of its international obligations.

Mrs. Montgomery’s degrading conditions of imprisonment may rise to the level of torture and at minimum entail violations of the Bangkok Rules and Nelson Mandela Rules. As the Commission noted with concern, Mrs. Montgomery is being held in solitary confinement in a harshly lit and freezing cell, with poor access to hygiene, under twenty-four-hour video surveillance, and without contact with any other prisoners. (Petition, pp. 54-57). Mrs. Montgomery is on the verge of a psychiatric breakdown, and the U.S. Government must not transfer her to the all-male United States Penitentiary, Terre Haute, where she is scheduled to be executed, as this would likely cause her irreparable mental harm because of her history of severe sexual violence and gang rape (p. 53).

Further concerns remain regarding whether the United States has failed to uphold Mrs. Montgomery’s fair trial rights and whether her case has been prejudiced because of gender discrimination (an under-researched topic that the Cornell Center on the Death Penalty Worldwide is illuminating for the first time as part of the Alice Project for Women on Death Row). Lisa’s history of legal representation fulfils the criteria of inadequate representation, which also constitutes a violation of her rights to a fair trial and to adequate representation. Significantly, the jury did not receive evidence of her brain injury during trial. With a history of deep-seated fear of men derived from decades of abuse, Lisa could not form a working relationship with her male counsel. One of her former lawyers, Frederick Duchardt, who also is alleged to have had a history of ineffective counsel, failed to investigate her traumatic past and “the relationship between Montgomery’s many symptoms and her appalling history”, describing mitigation research as “garbage”. According to the same source, the Prosecution failed to investigate this as well. When a female attorney joined the team, with whom Lisa was able to build a relationship of trust and who sought to conduct mitigation investigations, her male colleague refused to work with her, and the judge removed her from the case, which left Lisa distraught and suicidal. Her new defence team therefore highlights how, in violation of the right to a fair trial, Mrs. Montgomery’s previous counsel failed to thoroughly investigate her social history, to formulate adequate theories in her defense, and to perform a mitigation investigation.

International Law is Clear: Stay the Execution

The IACHR ruling granted precautionary measures, as it found that the case met the requirements of seriousness, urgency, and irreparable harm (paras. 3, 34-51, 53).  Mrs. Montgomery’s application also alleges that prosecutors violated her right to a fair trial by discrediting uncontroverted evidence of her severe trauma and her history of sexual and childhood abuse. At trial, prosecutors undermined Mrs. Montgomery’s defence by denigrating it and calling it the “‘abuse excuse’” (para. 17). Prosecution experts also suggested that Mrs. Montgomery had consented to her stepfather’s brutal and repeated rapes, starting when she was 11 years old.

Lisa’s case implicates the U.S. in potentially disregarding its international human rights obligations in a manner reflective of the myth of American exceptionalism on the world stage and at home – on the basis of the U.S. being unbound by any international law, especially human rights law, at its discretion. The U.S. is a founding member of the Organization of American States, and is therefore bound by the Commission’s legal mandate to grant precautionary measures (under Article 106 of the Charter of the Organization of American States). The U.S. must now accept and respect the Commission’s ruling to stay Mrs. Montgomery’s execution and must adopt measures to protect Mrs. Montgomery’s life and right to humane treatment while the Commission adjudicates her pending petition. Any other outcome would unconscionably undermine the United States’ core constitutional fair trial and due process guarantees and breach customary international law prohibiting the execution of mentally ill persons and incapacitated such as Lisa Montgomery. Moreover, it would signal to the world that the U.S. disregards not only the rights of women and girls, but that it tolerates and accepts rampant emotional and physical abuse committed and punishes those who have been victimized.

Lisa is currently on suicide watch. The stakes for the necessity of U.S. compliance with international law has never been clearer.