Georgia high court clears path for COVID-delayed prisoner executions

An agreement halting the executions of nine Georgia inmates on death row during the coronavirus pandemic doesn’t protect them anymore, the Georgia Supreme Court ruled Tuesday.

In a unanimous opinion written by Justice Carla Wong McMillian, the court reversed a Fulton County judge’s ruling from last year that held the 2021 agreement continued to prevent the executions.

The agreement prevented the attorney general from pursuing execution warrants for the nine inmates until the COVID-19 vaccine was readily available to all people. Last year, Fulton County Superior Court Judge Shukura Ingram agreed with a group of Georgia capital defense attorneys that the condition had not been met because the vaccine had not been approved for infants under the age of 6 months.

In overturning that decision, the state Supreme Court reiterated that “the supply of COVID-19 vaccines now exceeds the public’s demand.” It said most vaccines are not generally recommended for children under 6 months.

“Given that the State produced undisputed evidence that the supply of the COVID-19 vaccine is adequate for all members of the public to obtain the vaccine and that no legal impediment exists for all members of the public to be vaccinated, if deemed medically appropriate, the trial court erred in concluding that the COVID-19 vaccine was not ‘readily available’ to all members of the public,” McMillian wrote.

Justice Benjamin Land wrote separately to point out that the agreement also doesn’t stop a district attorney from seeking an execution warrant. He said that’s an important finding as the state and defense attorneys continue to argue about inmate executions.

“While the agreement unquestionably ties the attorney general’s hands when it comes to his office’s pursuit of execution orders, it does not tie the district attorney’s hands at all,” Land said.

Justices John Ellington and Shawn Ellen LaGrua agreed with Land.

In March, Georgia Solicitor General John Henry Thompson asked the court to wipe out Ingram’s order barring the executions. He said the pandemic is “in the state’s rearview mirror,” and the justice system is operating normally.

Thompson said executions of Georgia inmates not subject to the 2021 agreement “have and will continue to take place under safe and fair conditions.”

“These nine inmates have received the reprieve their attorneys bargained for,” Thompson argued. “They cannot be allowed to escape justice permanently.”

Sarah Brewerton-Palmer, an attorney for the Federal Defender Program, argued that the state refused to accept the plain language of the agreement and wait until COVID-19 vaccines are approved for infants. She acknowledged that she did not know when that might happen.

“They have to come forward with evidence that children under 6 months old are able to get the vaccine without obstacle,” she said of the state.

There are 33 inmates on death row in Georgia, the state corrections department reported in March. The agreement does not halt all executions.

The last inmate executed by the state was Willie James Pye in 2024.

The fight over the 2021 agreement now returns to Ingram in Fulton County.

It flared in 2022 when the state attempted to execute Virgil Presnell, Georgia’s longest-serving death row inmate. Presnell’s execution was halted by another Fulton judge just hours before he was set to die by lethal injection.