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.”