Coronavirus Pandemic Halts Executions, Perhaps for the Foreseeable Future

The pub­lic health cri­sis from the COVID-19 coro­n­avirus pan­dem­ic has halt­ed exe­cu­tions in the United States and, legal experts say, is like­ly to con­tin­ue to do for the foreseeable future. 

With nine of the eleven seri­ous death war­rants between March 15 and June 30, 2020 sched­uled in Texas, the deci­sions by the Texas Court of Criminal Appeals (TCCA) to issue 60-day stays for the two pris­on­ers with March exe­cu­tion dates sug­gests that oth­er stays are like­ly to fol­low. Citing ​“the cur­rent health cri­sis and the enor­mous resources need­ed to address that emer­gency,” the TCCA stayed John Hummel​’s March 18, 2020 exe­cu­tion on March 16, and three days lat­er halt­ed the March 25 exe­cu­tion of Tracy Beatty.

Viewed in con­cert with the TCCA’s March 13 First Emergency Order Regarding the COVID-19 State of Disaster—which directs all Texas courts to mod­i­fy or sus­pend court dead­lines and pro­ce­dures dur­ing the cur­rent State of Disaster when nec­es­sary ​“to avoid risk to court staff, par­ties, attor­neys, jurors, and the pub­lic” — it seems unlike­ly that exe­cu­tions would resume dur­ing that peri­od. ​“When courts aren’t even capa­ble of deal­ing with the ordi­nary busi­ness, it is unre­al­is­tic to expect they’ll be capa­ble of deal­ing with extra­or­di­nary busi­ness,” DPIC Executive Director Robert Dunham told UPI.

The prospects of new short-term exe­cu­tion dates being set dur­ing the height of the pan­dem­ic also appears increas­ing­ly remote. The Wall Street Journal reports that pros­e­cu­tors in Georgia, whose two-week death war­rant peri­od is the short­est in the nation, said exe­cu­tions are ​“tak­ing a back seat to more urgent pri­or­i­ties.” Katie Byrd, a spokes­woman for Georgia Attorney General Chris Carr told the Journal: ​“The state of Georgia’s resources are focused on ensur­ing essen­tial ser­vices and func­tions of state gov­ern­ment in light of the cur­rent pub­lic health emer­gency, and it would be high­ly unlike­ly the state would pro­ceed until such emergency subsides.”

The pan­dem­ic health risks asso­ci­at­ed with exe­cu­tion-relat­ed pro­ce­dures are well rec­og­nized. Clemency pro­ceed­ings bring lawyers, board mem­bers, wit­ness­es, and staff into close con­tact. Executions gath­er cor­rec­tions per­son­nel, lawyers, fam­i­ly mem­bers of the vic­tims and defen­dants, spir­i­tu­al advis­ers, and media wit­ness­es into enclosed spaces with­out the pos­si­bil­i­ty of ade­quate social dis­tanc­ing. ​“You are cre­at­ing a poten­tial petri dish to spread the virus,” Dunham said. 

But the imme­di­ate health cri­sis also has a sig­nif­i­cant impact on inves­ti­ga­tions nec­es­sary for lit­i­ga­tion in cas­es with exe­cu­tion dates that are months away. Oscar Franklin Smith, who is fac­ing a June 4 exe­cu­tion date in Tennessee, is seek­ing a six-month stay due to the chal­lenges pre­sent­ed by the coro­n­avirus out­break. His attor­neys are pur­su­ing lit­i­ga­tion on an inno­cence claim and are prepar­ing a clemen­cy peti­tion that involves ​“infor­ma­tion from fam­i­ly, friends, co-work­ers, and oth­er third par­ties who have infor­ma­tion that courts can­not con­sid­er, but which is of par­tic­u­lar rel­e­vance in mak­ing the case for mer­cy.” Their work, the stay appli­ca­tion notes, ​“con­sumes hun­dreds of hours of staff time, exten­sive trav­el as wit­ness­es relo­cate over time, and face to face inter­views. It would be irre­spon­si­ble and against the public’s inter­est to con­duct the nec­es­sary inves­ti­ga­tion dur­ing this pandemic.” 

Kelley Henry, a fed­er­al defend­er rep­re­sent­ing Smith, said the defense team ​“can­not con­duct the work nec­es­sary to ful­fill their oblig­a­tion to him with­out putting them­selves and oth­ers at risk.” Acknowledging the dif­fi­cul­ty of the sit­u­a­tion, Tennessee pros­e­cu­tors respond­ed: ​“The court is clear­ly aware of the sta­tus of the nov­el coro­n­avirus dis­ease in Tennessee and its impact on the judi­cial sys­tem.” The state jus­tices, pros­e­cu­tors wrote, are ​“in the best posi­tion to deter­mine whether a stay of exe­cu­tion should be granted.”

Experts spec­u­late that the pan­dem­ic and the accom­pa­ny­ing exe­cu­tion delays may accel­er­ate the U.S. trend away from the death penal­ty. Executions and death sen­tences have remained at or near his­tor­i­cal­ly low lev­els over the last five years, and sup­port for cap­i­tal pun­ish­ment was 56% in 2019, just one point above the gen­er­a­tional low record­ed the year before. Ohio State University law pro­fes­sor Douglas Berman wrote in his blog Sentencing Law & Policy, that ​“the US would seem to now be on pace for its low­est num­ber of exe­cu­tions in near­ly four decades.” 

“Whatever hap­pens with the death penal­ty while we deal with COVID-19,” Berman said, ​“I think there will be very strong argu­ments that this pun­ish­ment is a kind of ​‘legal lux­u­ry’ that we real­ly can­not and ought not invest resources in while we try to rebuild after COVID-19.” Dunham expressed sim­i­lar sen­ti­ments, say­ing of the pan­dem­ic, “[w]hen you go through soci­ety-alter­ing events like this [and] you come out the oth­er side, there’s a ten­den­cy to reassess social values.”