by Megan Butler
The Georgia Supreme Court paved the way Tuesday for the state to move forward with the executions of nine death row inmates that had been paused under a Covid-related agreement.
In April 2021, the state agreed to not pursue certain execution warrants until “a vaccination against Covid is readily available to all members of the public.” In Tuesday’s opinion, the justices lifted a lower court injunction that blocked executions until that condition has been satisfied.
“Although Covid-19 vaccines were in short supply during the pandemic and for some time after, the supply now exceeds thepublic’s demand,” Justice Carla Wong McMillian wrote.
“And, though Covid-19 vaccines were not yet FDA-approved for children under 5 years old when the interlocutory injunction was imposed, in June 2022, Covid-19 vaccines were FDA-approved for all persons who are at least 6 months old,” McMillian added.
The justices noted while the FDA is the final decisionmaking body that determines approval for all vaccines, it has yet to approve Covid vaccines for children under 6 months old.
They added there is a likelihood it may never be approved for that age group, as most vaccines are not generally recommended for infants, except for Hepatitis B and the newly approved RSV vaccines.
Regardless, the justices said nothing legally prohibits children of any age from receiving a Covid vaccine, if a parent requests it and is deemed medically appropriate by the provider.
“Most vaccines — like Covid-19 vaccines — are not generally recommended for children under 6 months old, which could impact whether a parent chooses to request a Covid-19 vaccine for her child or whether a provider would agree in the exercise of her medical judgment to administer the vaccine, but that does not mean that the vaccine is not available or obtainable,” McMillian wrote.
All the justices concurred in the opinion except Chief Justice Nels S.D. Peterson and Justice Andrew A. Pinson — who were recused from the case — and Justice Sarah Hawkins Warren, who did not participate.
Georgia’s Supreme Court previously held that the agreement was valid and enforceable and that the trial court did not abuseits discretion in granting an injunction, which prohibited the state from pursuing execution orders for inmates such as Virgil Presnell Jr.
Presnell has been on Georgia’s death row for decades. After an execution order was issued for him in April 2022, the Federal Defender Program sued, claiming the state breached its contractual agreement.
“While we agree with the trial court that under the law-of-the-case doctrine, the vaccine condition’s reference to ‘all members of the public’ includes children under the age of 6 months, we disagree that under the plain language of the vaccine condition, FDA-approval is required for the COVID-19 vaccine for all members of the public,” McMillian wrote.
Justice Benjamin Land wrote separately to address another issue. While he concurred with the others, he pointed out that the agreement at issue does not halt all execution proceedings and only places a restriction on the Attorney General’s Office.
He said nothing in the agreement restricts a district attorney’s authority to obtain an execution warrant.
“Thus, 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 wrote.
“If the district attorney wishes to obtain an execution order without the blessing or request of the attorney general, there is nothing in the agreement that prevents him or her from doing so,” he added.
Justices John Ellington and Shawn LaGrua joined in Land’s concurrence.
The agreement was originally reached to help the state’s capital defenders efficiently defend their clients while facing pandemic-induced restrictions under a “judicial emergency order” issued March 14, 2020. Presnell’s defense team said they were given just two days’ notice to prepare for his clemency hearing.
Presnell is the state’s longest serving death row inmate, with at least 32 others on death row, according to the Georgia Corrections Department. An inmate hasn’t been executed since 2024.
“We will continue to pursue justice for the victims of these heinous crimes,” Kara Murray, a spokesperson for Attorney General Chris Carr said in response to Tuesday’s opinion.
The Federal Defender Program did not immediatly respond to a request for comment.
