ATLANTA – Georgia’s Supreme Court says that a state pledge to not execute some inmates until certain conditions are met following the COVID-19 pandemic is a binding contract that the state can’t ignore.
Tuesday’s 6-0 ruling is likely to further delay efforts to put to death the inmates who were covered by the deal, although some other inmates may not be protected. The case must go back to the trial court for a final ruling.
The last person that Georgia executed was Donnie Lance in January 2020. From 2010 to 2019, Georgia executed three people on average each year. In October, Georgia had 38 people on death row, but far fewer had exhausted their appeals, according to a state report.
“We will continue to hold the State to its agreement regarding Covid-restrictions so that the Federal Defender may properly, professionally, and safely represent its clients before the courts and the Georgia Board of Pardons and Paroles,” Ronan Doherty, who represented the Federal Defender Program, said in a statement.
Georgia Attorney General Chris Carr’s office declined to comment because the case is going back to the trial court.
At issue is an April 14, 2021, email exchange between Senior Assistant Attorney General Sabrina Graham, who leads death penalty litigation for the state, and Anna Arceneaux, the executive director of the Georgia Resource Center, which defends some inmates facing the death penalty.
The email agreed that the state would refrain from executing anyone until six months elapsed after three conditions were met: an end to the state of judicial emergency brought on by the pandemic, a return to pre-pandemic visiting rules in state prisons, and availability of COVID-19 vaccines to all members of the general public.
Another death penalty defense group, the Federal Defender’s Office, sued the state arguing it had breached a contract when the state persuaded a Cobb county judge to set an execution warrant for Virgil Delano Presnell Jr. on April 27.
Presnell killed 8-year-old Lori Ann Smith and raped her 10-year-old friend after abducting them in May 1976 as they walked home from school in Cobb County. He was convicted in August 1976 on charges including malice murder, kidnapping and rape, and was sentenced to die. His death sentence was overturned in 1992, but was reinstated in March 1999.
Defense lawyers said that they needed regular visitation and plenty of time to prepare a clemency petitions to the Georgia Board of Pardons and Paroles. Presnell’s lawyers presented no live witnesses and no live expert testimony at the clemency hearing that followed the issuance of the execution warrant, with only two days’ notice given.
Fulton County Superior Court Judge Shermela Williams issued an order on May 16 temporarily blocking the state from proceeding with the execution, citing the agreement that Graham had made.
Carr appealed to the state Supreme Court, arguing that the agreement was not a binding contract and thus could not be enforced.
Justice Carla Wong McMillian, writing Tuesday for the unanimous court, roundly rejected the state’s argument, finding the email to be a contract, which means that under state law, Georgia had opened itself to a lawsuit.
Justice Charlie Bethel, weighing in with a concurring opinion that all five other justices on the case joined, was harsher. He wrote that Carr should have never filed the appeal and instead followed the agreement writing that “everyone should be able to count on the state to honor its word.”
“The people of Georgia, who are the very source of the state’s sovereignty, are owed a government that honors its commitments,” Bethel wrote.