by Michael Fortino, Ph.D.

You have been assigned to be a juror in each of the following cases, and your responsibility is to decide which of these guilty suspects is sane enough to qualify for the death penalty and which may be suffering from a mental health impairment that will qualify for conditional release after years of psychiatric treatment.

In your first case as juror, you learn that suspect, Lisa Montgomery, befriended a 23-year-old pregnant women, strangled her with an electric lamp cord then proceeded to cut the women’s baby girl out of the womb only to find that during the first few inches of this violent evisceration her victim awoke from the pain and began screaming. Montgomery then returned to strangling her victim, this time to death, finished removing the baby, and proceeded home with her new daughter.

In your second case as a juror, you learn that suspect, Andrea Yates, decided that she could no longer deal with the stress of raising her five infant children, so she proceeded to chase them through the house, the children screaming and fleeing from their mother in terror and attempting to hide in closets and under beds while she methodically drowned each in the bathtub, one child at a time.

As juror, you must now decide which suspect seems sane enough to know right from wrong and thus face the death penalty, and which suspect was incapable of understanding the heinous nature of her crime and should be afforded compassion and psychiatric care. One suspect will be given the death penalty, and one will be given conditional release after treatment. If you are struggling with your decision in these two horrifying criminal cases, you are not alone. Unfortunately, there is no simple answer when we as a society adopt the role of judge, jury, and executioner by evaluating a criminal’s state of mind at the time of the crime. The larger question here is: Do we as a society possess the insight and wisdom necessary to accurately judge when it is appropriate to take someone else’s life?

Lisa Montgomery was executed by lethal injection. Andrea Yates was not. Andrea was given psychiatric treatment and the possibility of a conditional release set for one day in the future. Lisa’s life was ended at the banging of a gavel. Each case leaves behind immense familial destruction, broken hearts, and ethical questions. Within each of these two cases, a large swath of society called for “revenge killing” while others demanded “compassion.” Each defense presented evidence of a psychotic episode or a dissociative state of delusion resulting in an inability to know right from wrong. As judge, juror, and executioner, we must now ask ourselves, when is a murderer “sane enough” to qualify for execution, and when is one “sick enough” to qualify for treatment?

Lisa Montgomery remained on Terra Haute’s infamous death row since 2001, until she was executed at 1:31 a.m. on January 13, 2021. She was the first female federal prisoner to be executed since 1951. Interestingly, her execution took place just days after the insurrection on the nation’s Capitol and at the height of the holiday COVID-19 surge while hospital intensive care units were overflowing with dying patients. Montgomery’s execution in such a volatile case and at such a volatile time shines a harsh light on the continuing pursuit of the death penalty and “revenge killing.”

Of the world’s 195 nation-states, the U.S. is one of only 48 nations that still clings to this practice, and one of only 18 nations carrying out scheduled executions every year for the preceding five years. Along with Japan, Taiwan, and Singapore, the U.S. is one of four advanced democracies and the only Western nation that applies the death penalty regularly. Though public support for the death penalty has plummeted from 78% in 1996 to 54% in 2018, the practice is still administered in 28 states, as well as all federal territories, and it is sanctioned under military law.

Without explanation or rationale, Attorney General William Barr, on July 25, 2019,  during the COVID-19 pandemic, restarted executions within the federal system after a 17-year hiatus. In fact, the term “Trump Spree” described the administration’s unprecedented push of 13 executions during Trump’s lame-duck period, the most of any outgoing President in 130 years. Lisa Montgomery was executed only seven days before Trump left office. Dustin Higgs’ execution was scheduled just four days before the inauguration. Daniel Lewis Lee, on July 14, 2020, became the first prisoner to be executed by the federal government since 2003. In the weeks leading up to his execution, he and others were required by the prison system to wear a mask and social distance when being moved around on death row.

In 1972, Congress banned executions on the basis of the Eighth Amendment’s “Cruel and Unusual Punishment” clause. There had been no executions between 1967 and 1977. But in 1977, after the introduction of lethal injection, an alternative to the “less humane” methods of electrocution, gassing, long-rope hanging, and firing squad, the option for capital punishment was reinstated. Since 1977, 7,800 defendants have been sentenced to death and more than 1,500 have been executed. Over those years, 172 individuals were wholly exonerated and removed from death row. However as of 2020, there remain 2,591 defendants languishing on death row, a traumatic experience that many describe as worse than death itself. Since then, 22 states have abolished the practice of capital punishment, with Michigan and Vermont abolishing it permanently.

In 2020, only five states, Alabama, Georgia, Missouri, Tennessee, and Texas continued executions. From 1970 to 2021, there were 1,533 executions, 1,353 by lethal injection, 163 by electrocution, 11 by gas inhalation, 3 by firing squad, and 3 by hanging (yes, states still execute by firing squad and hanging). Under then Governor George W. Bush, Texas, which leads the nation in state-sanctioned executions with 576—more than a third of all executions nation-wide, proclaimed that death row prisoners must complete all appeals within a seven-year window to reduce the excessive cost of the legal process.

Studies show that death penalty cases cost 70% more than the cost of a comparable non-death criminal case. California estimates that its current death row system costs $137 million dollars annually, and with proposed reforms, that cost is expected to skyrocket to $232 million compared to the annual cost of a mere lifetime in prison which costs the state $11.5 million overall. Prosecution costs to adjudicate a death penalty case are 48% higher than the average cost of a standard criminal trial. New York estimates that it invests more than 8,000 hours in public defender representation compared to fewer than 180 hours for non-death criminal defense. Just the cost of staffing alone for death row officers is seven times more expensive. Between 1978 and 2011, California death penalty prisoners have cost the state $1 billion, and with the addition of outside defense and appellate costs, $3 billion over that same period. Finally, the cost of death itself has gone up since 2011when a single dose of lethal injection was $83.55. Today in states like Virginia, that same dose is over $16,500 per injection due to European chemical suppliers, as the main source, refusing to contribute to this controversial practice.

The average cost to tax payers for every death row prisoner is approximately $8.2 million, and most will languish there for an average of 11 years. Eventually, the “Antiterrorism and Effective Death Penalty Act” was signed into law by President Bill Clinton in 1996, which was designed to further streamline the appeal and execution process. Virginia maintains the shortest duration, eight years, from time of conviction through execution. There still exists a problem with “botched executions.” It is estimated that 34 of the previous 749 executions between 1977 and 2001 or 4.5% resulted in unanticipated problems that caused unnecessary agony to the prisoners. Some in society might say, “so be it.” The Eighth Amendment says otherwise.

Total executions in 2020, however, were notably fewer, and the lowest count since 1991. This decrease was likely the result of scheduling complications and court delays due to COVID-19. In fact, it was COVID-19 that played a role in delaying the execution of Lisa Montgomery when her own attorney became ill. Ironically, Montgomery was being held at a women’s psychiatric institution receiving treatment for mental health while she awaited execution.

Closer Look at the
Montgomery Case

As shocking as Montgomery’s actions may sound, her crime was by no means unique. Such crimes have come to be defined by a specific term: “fetal abduction.” These are homicides in which a pregnant woman is murdered to provide a baby for another woman, usually one who is infertile. The unborn infant is often violently removed from the mother’s body. Shockingly, there have been 18 such cases in recent years; however, none of the perpetrators until Montgomery has received the death penalty. Of these cases, four victims and 13 infants survived.

In April of 2004, Montgomery befriended Bobbie Jo Stinnett at a dog show. Both women shared an interest in dog breeding and exchanged messages through an online board. Stinnett maintained a website called Happy Haven Farms to promote a dog breeding business located in her home in Missouri. When Stinnett became pregnant in 2004, she shared the news with her online community, which included Montgomery.

In spring of 2004, Montgomery began telling family, friends, and online acquaintances that she too was pregnant. This proved to be biologically impossible. Montgomery had undergone tubal fulguration nearly 14 years earlier, a practice that cauterized her fallopian tubes. Her second husband at the time, Kevin Montgomery, and her children were not aware of the sterilization. Montgomery acted pregnant and wore maternity outfits. Her former husband and his wife, along with others who knew of the sterilization, accused Montgomery of lying. She warned that she would prove them wrong.

Using an alias, Montgomery contacted Stinnett on December 16, 2004, by instant message. Stinnett had a litter of puppies for sale advertised on her website, and Montgomery expressed interest in purchasing one. That day, Montgomery arrived concealing a knife and a strangling cord. She took Stinnett by surprise. A struggle ensued, and Montgomery overpowered the younger woman. She first strangled Stinnett unconscious then cut her womb open to remove the baby. As previously described, Stinnett regained consciousness just as Montgomery was slicing into her abdomen. Montgomery then returned to strangling Stinnett until she was finally asphyxiated. Montgomery then proceeded to remove the fetus, slicing Stinnett’s womb open with a kitchen knife and removing a baby girl that, except for a small cut over one eye resulting from the grotesque violence perpetrated on her mother’s abdomen, was perfectly healthy.

Montgomery took the baby and drove to Topeka, calling her husband when she arrived. She explained that she had gone into labor while Christmas shopping and that she delivered the baby at a women’s clinic in Topeka. She asked her husband to pick her up and drive her back to Missouri with the new infant. The rest of the day, Montgomery continued to claim the baby was hers while at the same time, Stinnett’s family found the 23-year-old’s body, cut open and lying in a pool of blood. When Montgomery was confronted by authorities the very next day, her story fell apart, and she confessed to the murder. As a juror, can you separate yourself from this gruesome event? Would you describe Montgomery as sane or insane? Was she delusional? Did she understand right from wrong?

While in custody, Montgomery presented a weak defense for her actions. She first claimed amnesia, but there existed evidence of premeditation and planning that countered that claim. Montgomery had searched for information online relating to pregnancy, cesarean section, and field delivery of babies. It was also learned that she had previously faked pregnancy on four other occasions. Cases involving a psychological preoccupation with an imaginary pregnancy is a malady known as Pseudocyesis, in which an individual presents with symptoms of pregnancy even though they are not real. Experts testified that she did not appear to suffer from the strict definition of this condition.

A Tragic and Traumatic History

Montgomery’s personal history was nevertheless tragic. As a child, she had been physically and sexually abused by her stepfather and brothers. Her parents divorced when she was 16, and Montgomery claimed her mother engaged her in acts of prostitution. At age 18, she married her stepbrother Carl Boman and had four children with him. It was in 1990 that Montgomery underwent the tubal fulguration procedure, which she claimed was forced upon her by her mother and her husband. She divorced Boman in 1998. In 2000, she married her second husband, Kevin Montgomery. She claimed to be pregnant on multiple occasions but would not allow her husband to accompany her on visits to her physician. That doctor later testified that he treated Montgomery for ankle pain and a cold, nothing to do with prenatal care. Montgomery later told her husband that the baby died and that she donated the body to science.

In 2004, Montgomery became involved in a custody battle with her first husband. Boman learned of her faked pregnancy claims and threatened to expose her and to use the information against her at the custody proceedings. This, prosecutors suggested, was a possible motive behind the offense. Their theory was that Montgomery needed to prove Boman wrong in order to win custody of her children.

At the center of every capital punishment consideration is a discussion surrounding “rational choice.” Judiciaries throughout history have been tasked with evaluating motive and cognitive awareness. Reaching back to the first capital case against women in 1632, the first woman executed in the U.S. was Jane Champion, convicted and hanged for “infanticide.” Most women sentenced to capital punishment in the 17th and 18th centuries were executed for child murder. Female executions fall far short of male executions by approximately one in every 285. The only time in U.S. history where more women were executed than men was during the Salem Witch Trials of the 17th century where women accounted for 80% of all executions.

Another factor for consideration when evaluating an individual’s mental and emotional capacity is age. In the U.S., juvenile executions were finally abolished as recently as 2005. The last juvenile to be executed was Scott Hain in Oklahoma in 2003, convicted at age 17 and killed at 32. It was only through a societal plea to provide juveniles with treatment rather than retribution that our nation moved the needle away from the arms of the young and the mentally ill. Although an increased number of cases are being reversed as a result of advancements in DNA, most defense attorneys move for an insanity plea.

Faced with the harsh facts of the case and the prosecution’s intention to seek the death penalty for their client, Montgomery’s legal counsel opted to present a mental disability defense. Her attorney hired Dr. Ruben Gur, Ph.D. who was prepared to testify on the basis of neuropsychological testing, magnetic resonance imaging (“MRI”), and positron emission tomography (“PET Scan”). Gur’s defense suggested that Montgomery likely suffered from brain structural and functional abnormalities that could induce Pseudocyesis. These abnormalities could possibly be the result of traumatic brain injury (“TBI”) suffered as a child. This was a risky defense because it required absolute proof of physical rather than psychiatric damage.

While the court acknowledged the beatings and sustained sexual abuse she suffered as a child, including gang rapes and being prostituted by her mother, were serious factors, the court concluded that these arguments “read like a clemency petitioner [and thus the] court [was] not the proper forum in which to make a request for clemency which [lay] in the exclusive province of the Executive Branch, not the Judicial Branch.” Advocates of “therapeutic jurisprudence,” rather than “retributive jurisprudence,” claim that factors such as those presented in the Montgomery case are essential for jurors at the time of sentencing. This advocacy fell on deaf ears most likely due to the egregious nature of the crime and society’s disdain for the violence perpetrated against the victim in this case.

Dr. Gur’s testimony went to the core of Montgomery’s defense, which was competency. Was Lisa Montgomery sufficiently capable of understanding the consequences of her actions or was she far too seriously impaired and unstable to make rational choices? This crucial question should always remain at the center of any discussion of capital punishment. Yet, all too often, public sentiment and media exposure drive the adjudication process. The more heinous and egregious a crime appears to society, the more influence society has over the court in its evaluation of sociopathic senselessness and the failed socialization involved in its commission.

It is often society, and not merely the court, that weighs heavily on whether a just response should be strictly punitive. With consideration for both the Andrea Yates case involving post-partum stress and the Lisa Montgomery case involving emotional abuse, society often drives the court to choose between punishment and compassion and between forgiveness and revenge. Do we revert to the Old Testament’s “an eye for an eye,” or do we “turn the other cheek” and move to a higher plane of civilized order and social cohesion?

Forgiveness or Revenge?

Appeal processes for clemency in capital cases are often time intensive and exceedingly expensive. In addition, they are also driven by public sentiment and media blow-back, not to mention political influence. Montgomery’s clemency appeal was 5,000 pages. A question of judicial overhaul may require our system to give greater consideration to the human rights of the accused despite public sentiment over the egregious nature of the crime. This might begin with the elimination of the “perp-walk” (guilty before proven innocent) and continuance of systemic reform throughout every facet of punitive retribution. The federal government currently enjoys a 98.5% conviction rate predominately due to an overwhelming number of plea agreements which result from the threat of an imposed “trial penalty” for those who wish to go before a jury. With regard to Lisa Montgomery’s appeal, the appellate court considered several factors, chiefly whether Montgomery was truly a victim of TBI and whether she was competent to stand trial. “Most courts have been unresponsive to TBI claims ... [Federal courts have] found that [defendants] did not establish that there is [any] national consensus against executing individuals who are criminally responsible and competent, even if they suffer from traumatic brain injury.” (Lynch, Perlin, Cucolo) In Montgomery’s case, the appellate court saw the significance of the brain imaging scans but nevertheless excluded the evidence. Dr. George Woods, an expert in neuropsychiatry, evaluated Montgomery in January of 2021 for the stay of execution appeal and determined that “Lisa Montgomery [was] unable to rationally understand the Government’s rationale for her execution.” Other issues were considered such as derogatory statements made by the prosecutor regarding the character testimony of Montgomery’s oldest daughter: “After all that, [Montgomery] drags [her] kids into court here to testify in this high-profile case in front of all these people, and puts them through this again, and victimizes them again in front of the whole world.... She’s a good mom? Most of us, if we had children [and] we were involved in a situation we would want them to be a thousand miles away from this. We wouldn’t make them come to court and testify.” Despite this prosecutor’s disdain for her children’s character testimony, there would seem no legal basis for the exclusion or disparagement of the children’s opinion of their mother or their desire not to see her executed. However, in our adversarial and predatory legal system, it is a prosecutorial strategy to destroy any remaining vestige of humanity and decency in those offenders we mean to put to death—a philosophic approach borrowed from military training in which soldiers are taught to dehumanize the enemy so they become easier to neutralize.

Another factor that was considered for appeal was whether the charge of murder in the course of a kidnapping was an accurate definition of Montgomery’s offense since the murder occurred first and was independent of the kidnapping of the fetus. This claim was easily dismissed, and it was typical of defense counsel grasping at straws during an emotionally-charged proceeding.

Other Examples

The reality is that TBI, psychological factors, PTSD, and intellectual disabilities play a significant role in human violence. Yet, as a society, we often ignore the science and fail to consider all mitigating circumstances that affect or impair our judgment. In recent years, advancements in science have provided us an opportunity to appreciate the effect trauma has had on altered thinking, and specifically, repeat trauma resulting from sports injury.

It is estimated that about 12% of all adults suffer with a chronic condition resulting from Traumatic Brain Injury or TBI. Variations of the disease include Chronic Traumatic Encephalopathy (“CTE”), which has been linked to erratic behavior. Men are twice as likely to develop the syndrome as women and 43% of those suffering with a brain injury experience long-term disability.

Football players like Aaron Hernandez and Junior Suneau are just a few who have displayed impaired judgment. Hernandez committed murder and then killed himself while in prison; Suneau committed suicide. Postmortem autopsies revealed severe brain damage from repeated concussions. Hernandez’s condition was the worst. Doctors said he had brain damage typically found in 60-year old ex-football players or boxers like that of Mohammad Ali. Our sports are violent, our crimes are violent, and our institutions seem bent on fighting violence with violence.

Consider the case of long-haul trucker Alfred Bourgeois. In 2004, Bourgeois killed his 2-year-old daughter in front of her mother by slamming the little girl’s head against the dashboard of his truck during a fit of anger. Later, it was determined that the child had been routinely beaten, tortured, and burned. Bourgeois and his wife kept the infant in the rig while they made deliveries to Corpus Christi Air Naval Base. They kept the child on a training toilet seat which she inadvertently overturned causing her father to fly into a rage.

Because the murder took place on federal property, a military base, Bourgeois was sentenced to death by a federal court. Post-trial medical and psychological examinations of Bourgeois found that he was suffering from severe deficiencies in mental function, scoring near the line of intellectual disability on IQ tests. The Government considered him competent enough to hold the trucking job even though the company Bourgeois worked for provided a significant support system for intellectually challenged employees. As a juror, ask yourself, could you show compassion for his intellectual deficiencies and avert from the death penalty in exchange for finding him treatment? Or, would you commit him to death for the carnage he inflicted on his daughter?

One of the 2021 executions was that of Corey Johnson, a crack cocaine trafficker who killed seven people in 1992. Like Bourgeois, Johnson also suffered with intellectual deficiencies including repeating third and fourth grades and showing no capacity to grasp basic concepts such as the date of his own birthday. Johnson could neither tell time nor recite the 12 months of the year, and for all practical purposes, cognitive testing suggested that he simply could not understand the difference between right and wrong. He was executed nevertheless.

Then there was the case of Lezmond Mitchell, a Native American Navajo man who killed a Navajo woman, Alyce Slim, and her nine-year-old granddaughter with the help of an accomplice in 2001. He was also found to be severely mentally handicapped, so much so that the Navajo Nation insisted he not be executed. The Navajo community is philosophically opposed to the concept of “revenge killing,” and insists that it does not, as a people, accept revenge as a response to violence. The federal courts, however, do. Mitchell was sentenced to die by lethal injection despite the fact that the crime transpired on Navajo lands governed by Navajo Tribal Law. The decision by the federal court to sentence Mitchell to death in 2003 was imposed against the wishes of the entire Navajo Nation, including family members of the victims.

It seems, however, that our criminal court system and its imposed death sentences are also arbitrary. Not all high-profile crimes result in the death penalty. John W. Hinckley, who shot President Reagan, seriously wounded Press Secretary James Brady, a Capitol police officer, and a Secret Service agent in 1981, was recently released following his treatment within a psychiatric facility. During that term, Hinckley was permitted to visit with his mother at her home from time to time and received extensive psychiatric care and counseling. Two other Presidential assassins, Lynette “Squeaky” Fromme and Sara Jane Moore are each out of prison following psychiatric treatment for mental illness. It was Hinckley’s case that led to the “Insanity Defense Reform Act” of 1984. Hinckley was eventually released in 2016 and currently lives with his mother.

Andrea Yates’ case shined a light on the “M’Naghtenn rules,” which were first established in the 1800s, and expanded the criteria for “Reason of Insanity.” It was Yates’ case that brought about the “Irresistible Impulse Test” to evaluate sociopathology and cases involving “Dissociative States of Delusion.” Social violence, however, continues to plague our culture on many levels. Abolitionists of the death penalty continue to advocate for a system of therapeutic justice, for an end to our authoritarian, and a retributive legal approach.

One would believe that the death penalty is introduced only in the most heinous of crimes such as “first degree murder;” however, this is not the only crime that carries with it capital punishment. There are generally 16 aggravating factors to be applied to a murder when seeking a death sentence (though the exact amount varies by state). Three of them are linked exclusively to narcotics trafficking. Florida and Missouri call for the death penalty in large-scale drug trafficking cases. North Carolina and Texas, in the early 2000s, attempted to pass legislation within their respective states to permit the death penalty for child predators even when no death transpired. That legislation was eventually reversed under Supreme Court authority. The criteria for the death penalty have evolved considerably since America’s first execution.

Looking back in history, the first person to be executed (by hanging) was a 17-year-old boy in the British Colony of Plymouth in 1642. His crime? Sodomy with livestock. In later years, hanging cattle rustlers was a common practice throughout the 19th century. Today, society struggles with the concept of “revenge killing.” More people are asking what purpose execution actually serves in this so-called “Enlightened Age.” Deterrence has already been ruled out. Many French news bulletins written during the time of the French Revolution described the spectacle of the public hanging for those caught stealing. Reporters would warn spectators to “mind the pick-pockets” that lurk in the crowd during the event. Studies show that the penalty of capital punishment is often the last thing one may consider during a crime of passion or an overt act of violence. Murder continues to display the lowest recidivism of any and all felony crimes.

The possibility of challenging the death penalty constitutionally became more realistic in 1958 with Trop v. Dulles. For the first time, the Supreme Court declared explicitly that the standard for “Cruel and Unusual Punishment” must be drawn from “evolving standards of decency that mark the progress of a maturing society.” But just how “evolved” are we at present? Is there truly a communal definition of “civility,” and “decency?”

Few Overturned

Of the current 62 death row cases pending within the federal system and the approximate 1,578 pending within the states, it is estimated that only about 6% of state cases and about 21% of federal cases will be overturned. Montgomery’s attorney, Kelley Henry, on the night of Lisa’s execution decried, “The craven bloodlust of a failed administration was on full display tonight.” Expecting the Trump administration to offer a final reprieve, all hope was lost for Montgomery at 1:31 a.m. on January 13, 2021. The Biden administration has pledged to place a moratorium on all future federal executions, but in Montgomery’s case, neither Trump nor Barr would postpone the execution by the mere seven days she needed to appeal to Biden.

Lisa Montgomery was asked if she had anything to say before the lethal injection was administered, any significant last words. Her reply was simply and sadly, “No.” Facing the ultimate indignity at the hands of an uncaring, cruel, and bureaucratically vengeful legal system, what else was left for her or anyone to say? There are no last words; there is only action.

Editor’s note: On July 1, 2021, the Office of the Attorney General issued press release 21-623 announcing: “Attorney General Merrick B. Garland issued a memorandum imposing a moratorium on federal executions while a review of the Justice Department’s policies and procedures is pending…. In the last two years, the department made a series of changes to capital case policies and procedures and carried out the first federal executions in nearly two decades between July 2020 and January 2021. That included adopting a new protocol for administering lethal injections at the federal Bureau of Prisons, using the drug pentobarbital. Attorney General Garland’s memorandum directs the Deputy Attorney General to lead a multi-pronged review of these recent policy changes….” According to the press release, “No federal executions will be scheduled while the reviews are pending.” 

Michael Fortino spent most of his career as an international keynote speaker on Leadership and Change. He has appeared on the front page of the Wall Street Journal, USA Today, and in TIME, Newsweek, Nation’s Business, and Psychology Today. Fortino has been featured on Good Morning America and the Tonight Show.

Sources: Lynch, Alison and Perlin, Michael L. and Cucolo, Heather: “Traumatic Brain Injury and The Criminal Trial Process”; McNaughton Rules; Insanity Defense Reform Act; National Geographic, Feb. 2021; Lieberman, James, Columbia Law School/Temple Law Review; Espy File; Report by Amnesty International, Feb. 2021; Chammah, Maurice: “Let The Lord Sort Them Out: The Rise And Fall Of The Death Penalty In Texas”; CDC.gov; DOJ.gov, United States Court of Appeals, Eighth Circuit

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