COVID-related agreement continues to shield some on Georgia's death row from execution

Winnipeg Free Press

3 days ago

ATLANTA (AP) — The fact that the COVID-19 vaccine is not available for newborn babies is shielding a group of prisoners on Georgia's death row from execution.
Executions in Georgia were halted during the COVID-19 pandemic, and the state attorney general's office entered into an agreement with lawyers for people on death row to set the terms under which they could resume for a specific group of prisoners. At least one of those conditions, having to do with the availability of the COVID-19 vaccine, has not been met, and seeking an execution date for a prisoner covered by the agreement would breach the agreement, Fulton County Superior Court Judge Shukura Ingram ruled.
The agreement includes three conditions that had to be met before executions could be set for the affected prisoners: the expiration of the state's COVID-19 judicial emergency, the resumption of normal visitation at state prisons and the availability of a COVID-19 vaccine 'to all members of the public.' Once those conditions were met, the state agreed to give three months' notice before pursuing an execution warrant for one of the prisoners covered by the agreement and six months' notice for the rest.
The state has argued that the agreement should no longer apply, contending the conditions have been met. But defense attorneys say it's still valid because the vaccine isn't yet available to infants under 6 months old, and visitation at state prisons has not returned to normal.
Ingram's ruling, issued Friday, addressed only the vaccination question. She plans to handle the visitation issue separately.
Ingram wrote that the state's arguments 'all boil down to an attempt to rewrite the Agreement.' The state is '(u)nhappy with the language it drafted' and wants to change it so that the condition would be satisfied once vaccines are available to 'most members of the public.'
'But courts cannot rewrite contracts to relieve a party of their regrets,' she wrote. She ruled that the agreement is 'binding and enforceable,' that the vaccination condition hasn't been met and that seeking an execution warrant before the requirements have been met would breach the agreement.
The state attorney general's office plans to appeal, a spokesperson said Tuesday.
Ingram noted that the Food and Drug Administration has approved clinical trials for infants under 6 months old, and newborns receive other vaccines. That shows it is possible for the COVID-19 vaccine to ultimately be available for that age group, and the state should have foreseen that that could take years, she wrote.
Experts for both sides had testified that it was probable that the COVID-19 vaccine would eventually become available to babies under the age of 6 months, Ingram wrote.
That was before Robert F. Kennedy Jr. was appointed U.S. health secretary. Kennedy last week announced that COVID-19 vaccines are no longer recommended for healthy children and pregnant women. A few days later, the Centers for Disease Control and Prevention's website, which had said those groups should get the shots, was revised to say the vaccinations 'may' be given to those groups.
The agreement covers fewer than 10 of the 34 people currently on Georgia's death row.
While Georgia stopped carrying out executions during the pandemic, death penalty cases continued to wind their way through the court system, and as people exhausted their appeals, they became eligible for execution.
A committee of a judicial task force on COVID-19 in early 2021 instructed lawyers for people on death row and the state attorney general's office to come up with terms under which executions could safely resume. The two sides reached the agreement in April 2021.
The agreement only applied to people on death row whose requests to have their appeals reheard were denied by the 11th U.S. Circuit Court of Appeals while the judicial emergency was in place. The agreement was to remain in effect through Aug. 1, 2022, or one year from the date on which the conditions were met — whichever was later.
The legal fight arose from a lawsuit filed when officials set a May 2022 execution date for Virgil Delano Presnell Jr. The Federal Defender Program, which represents Presnell, said the state had violated the agreement because the conditions hadn't all been met.
Based on that argument, a Fulton County Superior Court judge halted the execution less than 24 hours before it was to take place, and the Georgia Supreme Court ruled in December 2022 that the agreement was a binding contract.
People on death row who are not covered by the agreement have since become eligible for execution. One of them, Willie James Pye, was put to death in March 2024.