When Donald Trump leaves the White House on January 20, 2021, he will be known, among other dishonors, for having executed more federal prisoners in a single year than any other before him. This may also include the only woman on federal death row, Lisa Montgomery, scheduled to die days before Biden, who opposes the federal death penalty, will be sworn in. Her lawyers have submitted a petition for clemency, detailing the multiple failures in Montgomery’s case, along with a long history of abuse and neglect by her family, and are asking the president to commute her sentence to life imprisonment. Unless Trump grants her clemency, or her execution is moved back, Lisa Montgomery will be killed, most likely with a lethal injection of pentobarbital, in Terre Haute, Indiana, on January 12, 2021.
To execute Lisa Montgomery would be a final act of violence in the lifetime of violence she has already endured. A survivor of childhood sexual abuse, which some of her family members have testified to knowing about, Montgomery was further failed by the legal system, which her defense team says had multiple chances to intervene and keep her from further trauma. This troubling history is now central to her supporters’ and her lawyers’ appeals for mercy. But the power of the very system that failed her is also evident even in these appeals: The best the system that failed to protect Montgomery in the past can now offer her, it appears, is sparing her life so that she may live the rest of it in prison.
Montgomery was sentenced to death in 2007, the punishment for a horrific incident in which she killed a pregnant woman and removed the unborn child from its mother’s body, claiming it as her own. (The baby survived; when law enforcement entered her Kansas home, they reportedly found the baby in Montgomery’s arms, a nationwide Amber Alert flashing on the TV.) Feigning pregnancy was a survival strategy, one of Montgomery’s current defense attorneys, Kelley Henry, told St. Louis Public Radio in December. “What she learned is that if she was pregnant, she wouldn’t be raped.” Her first husband, a stepbrother she was married to at the age of eighteen, was abusive; after they had four children, Montgomery’s mother pushed her to be sterilized. Still, after that, said Henry, she would say she was pregnant as a way to avoid abuse. “She was pushed into a situation where she had to produce a baby, or in her mind—her very psychotic mind—her entire world was going to come crashing down on her,” Henry said. “And of course it did anyway.”
Motherhood became part of the case against Montgomery. During her trial, prosecutors cited her alleged abuse and neglect of her own children, as if it was evidence of her guilt, when, as Rachel Louise Snyder writes in The New York Times, in Montgomery’s case this should have been seen as evidence of the abuse and neglect she had faced herself. Her defense team in her initial trial shied away from the issue. “Both sides,” Snyder writes, “flattened Lisa Montgomery’s personhood; in one version she’s a monster, and the other a myth.”
Judy Shaughnessy, Montgomery’s mother, raised Lisa in poverty and chaos, with multiple stepfathers and in dozens of different homes, according to scores of interviews and documents cited in a biopsychosocial history of her life, commissioned by her current defense attorneys. Shaughnessy abused Lisa’s half-sister, Diane, who escaped the abuse when she was taken into foster care. One of Shaughnessy’s husbands, Jack, abused Lisa when she was a teenager. Some of this abuse was not a secret at all. Montgomery told a cousin at the time—a police officer. He did nothing. Then, in divorce proceedings, Shaughnessy testified under oath that she had witnessed her husband Jack rape Lisa. The court ordered counseling, but no criminal actions followed.
“Perhaps no event captures the level of emotional abuse and perversity in the family,” wrote one clinical psychologist, evaluating Lisa’s history, as much as her mother’s response to Jack’s abuse of Lisa. “Upon discovering Lisa being raped by [her stepfather Jack],” the psychologist wrote, “Judy got a gun, held it to Lisa’s head and screamed, ‘How could you do this to me?’ When this is reported in a counseling session, Lisa’s mother stated that she pointed the gun at Jack. However, Lisa recalls the event as a moment of profound threat, as her mother seemed to be blaming her for having sex with her husband.”
By her current attorneys’ accounts, Lisa Montgomery is at times too overwhelmed to have a real understanding of what’s happening to her in prison. When her execution date was set, some months back, and she was moved to an isolation cell, her defense team “spent hours trying to calm her, explain the status of her case, and ascertain her current mental status,” they wrote in a statement. She has been diagnosed with multiple disorders and mental health issues. There is evidence she has suffered brain injuries in the course of her abuse. Having lived under the threat of punishment all her life, what can the kind of punishment meted out by our courts and prisons accomplish in this case?
What does a death sentence mean, too, during a deadly pandemic sweeping through jails and prisons due to systemic neglect? Until July, the federal government had not put anyone to death for 17 years; Trump’s rush to push through more executions before his term ends, Robert Dunham, director of the nonpartisan Death Penalty Information Center, told the Associated Press, “is a complete historical aberration.”
If Lisa Montgomery is executed, her legal team said Tuesday that they intend to be present to intervene through the courts should the conditions be “torturous,” already a serious concern with the drug used for lethal injection, pentobarbital, and even more so, her lawyers say, due to its possible interaction with other medications Montgomery is prescribed. But if her attorneys travel to Terre Haute to witness the execution, they will be putting their own health at risk, as well. Eight members of the federal execution team and one clergy member present at the November execution of Orlando Hall contracted Covid-19 in early December. Dustin John Higgs, set to be executed on January 15, has tested positive for Covid-19. All is moving ahead as scheduled.
Once her execution date was set, Montgomery’s attorneys had 30 days to complete a clemency petition for her. Covid-19 nearly thwarted that, too: After visiting her in prison, two of her lawyers contracted Covid-19, further setting them back. In November, a court granted them an extension, and the government rescheduled Montgomery’s execution to January. In December, a district court judge ruled that rescheduling was a violation of the court’s order, but the government has successfully appealed, and the January 12 date is set again as her scheduled execution.
There has been an outpouring of support for clemency for Lisa Montgomery, including from hundreds of organizations and individuals working on gender-based violence. Forty current and former prosecutors stand with them. They don’t contest that Montgomery murdered a woman and took her child, nor are they seeking her release. “A history of being victimized is not an ‘abuse excuse’ as the jury was told at her trial,” the prosecutors’ letter states. “We view this kind of evidence as critically relevant to determining the appropriate punishment for a serious crime.”
Montgomery’s case clearly reveals the failure of the criminal legal system—from child protective services to police to the attorneys appointed to defend her in her initial trial. But advocates against the death penalty are required to appeal to that system. So while Lisa Montgomery is being defended—and rightly so—as someone who has survived a life of profound abuse and violence, there’s little space in such appeals to point out that prison is itself another form of abuse and violence.
Montgomery is awaiting her execution in a “cold, single cell with constant bright lights,” according to a recent lawsuit filed by the American Civil Liberties Union. “Male guards now observe Mrs. Montgomery while she uses the toilet in the new cell.” Her bra, underwear, and socks were taken from her. Instead, she was given a pair of mesh underwear with the instruction, “Be a good girl, now.” Considering the overwhelming pattern of sexual abuse in Montgomery’s life before prison, the ACLU argued that these conditions amounted to torture. Its suit was dismissed.
What Montgomery is facing now in what might be her last days is not exceptional: Prison is a place of deprivation and abuse. But the coercive power of the carceral state can be seen, too, in how it constrains our ability to imagine alternatives. “No one is arguing that Lisa Montgomery should be freed from prison,” Snyder wrote in her New York Times opinion piece. But why shouldn’t they? “We can oppose her execution without accepting the lifelong incarceration of someone with severe mental illness,” countered Liliana Segura, a longtime death penalty reporter who has attended each federal execution this year, on Twitter, when Snyder’s piece was published. Saving Montgomery’s life now is not and does not have to be the limit of justice.
Perhaps accepting Montgomery’s lifelong imprisonment is a pragmatic choice more than a heartfelt position, a kind of acknowledgment that the justice system may not have much else to offer Montgomery or a strategic concession from which to argue that her execution be halted. The stakes of a death penalty case could not be higher. But that’s not a reason to prevent us from also imagining what a more humane response would be.
“It is almost impossible for me to think about the level and the commitment to treatment that Lisa would need to reach anything that we could call healing,” said Leigh Goodmark, law professor at the University of Maryland Francis King Carey School of Law and author of Decriminalizing Domestic Violence: A Balanced Policy Approach to Intimate Partner Violence, in a press call on Tuesday. Any treatment would have to, at a minimum, “accept this history of trauma and not question the underlying basis for her actions.” It would have to focus on “helping her to deal with the PTSD and dissociative disorder that continue to plague her and make her unfit for execution.”
Fundamentally, however, that is not something a prison is designed to do. “I have to imagine that many of the things Lisa experiences on a daily basis being incarcerated serve as triggers to that continued trauma,” Goodmark said. “I don’t think it’s an ideal treatment setting for anyone, and I think it would be particularly challenging for her, but I think it’s something we should be committed to.”
A reprieve from death should be just the beginning for Lisa Montgomery. What comes after for a life spared? We can demand more than the state’s mercy.