Georgia readies to resume executions after a 4-year pause brought by COVID and a legal agreement

Georgia last carried out an execution in January 2020. Just over a year later, in April 2021, the state attorney general’s office entered into an agreement with attorneys who represent people on death row to temporarily suspend executions for a certain group of people on death row and to establish conditions under which they could resume.

Here’s a look at why it’s been more than four years since Georgia has carried out an execution.

After the U.S. Supreme Court reinstated the death penalty in 1976, Georgia resumed executions in 1983. The four-year break in executions caused by the coronavirus pandemic and a related agreement between the state and lawyers for people on death row was the longest pause since then. From 2010 to 2020, the state executed 30 people, including nine in 2016 and five in 2015.

Unlike some other states, Georgia has not appeared to have problems obtaining the drug it uses for lethal injections. Prison officials have said they get the sedative pentobarbital from a compounding pharmacy whose identity is shielded by state law.

Executions in Georgia stopped in 2020 because of the coronavirus pandemic. But court proceedings continued, meaning people on death row continued to become eligible for execution as they exhausted their appeals.

In early 2021, a committee of a judicial task force on COVID instructed lawyers who represent people on death row to work with the state attorney general’s office to determine terms under which executions could resume. After negotiations, they entered into the agreement in April 2021.

Executions would not restart until six months after three conditions had been met, according to the agreement: the expiration of the state’s COVID-19 judicial emergency, the resumption of normal visitation at state prisons and the availability of a COVID vaccine “to all members of the public.” It also set minimum time intervals for the spacing of executions once they resumed.

The agreement applied to death-sentenced prisoners 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.

State officials obtained an execution order in April 2022 for Virgil Delano Presnell Jr., setting his execution for May 17, 2022. But Presnell’s lawyers with the Federal Defender Program sued, arguing the state had violated the agreement. The judicial emergency had expired in June 2021, but the lawsuit said the other two conditions remained unmet.

A Fulton County Superior Court judge agreed and halted the execution less than 24 hours before it was to take place. The state Supreme Court did not immediately rule on the state’s appeal, so the stay order remained in place until after the weeklong execution window had expired.

The Georgia Supreme Court ruled in December 2022 that the agreement was a binding contract. In a scathing concurring opinion, Justice Charlie Bethel wrote that “everyone should be able to count on the state to honor its word.”

The case returned to the lower court, where the two sides tried to reach a settlement agreement. Lawyers for the state on Feb. 27 informed the lawyers for people on death row that further settlement negotiations were not worthwhile, according to a court filing by Pye’s lawyers.

On Feb. 28, the day before the state obtained an execution order for Pye, his lawyers filed a motion for him to join the litigation over the agreement. They argued that the visitation and COVID vaccine requirements in the agreement were not yet fulfilled.

“We are beyond shocked and outraged by the fact that, in the midst of settlement discussions, the Attorney General’s office was simultaneously acting to pursue the execution of Willie Pye, one of our clients included in those talks, and doing so without informing us or the Court,” said Nathan Potek, who represents death row prisoners for the Federal Defender Program.

Pye’s appeal was decided by the 11th Circuit in April 2021, before the judicial emergency ended, and that’s the relevant date, his lawyers argued. But the three-judge panel of the appeals court didn’t reject his case, instead tossing out his death sentence. The case was reheard by the full appeals court and, ultimately, the 11th Circuit denied his appeal in March 2023, nearly two years after the judicial emergency ended.

Pye’s lawyers noted that their access to Pye remains extremely limited, saying it took more than 24 hours to arrange a phone call with him after the execution order had been issued. They added: “This is not normal or consistent with access to and availability to counsel that was previously possible, and it is unacceptable.”

The state argued that the agreement was temporary and was “expressly limited to a small subgroup of death eligible inmates.” Pye is not in that group and is thus not exempt from execution while the litigation over the agreement is pending, the state says.

The judge agreed with the state, writing that the timeline of Pye’s case is undisputed and leaves him outside of the group covered by the agreement. Pye’s lawyers are seeking to take that decision to the state Court of Appeals.

Pye’s lawyers also filed a new lawsuit last week accusing the state of violating the contract.