How Coronavirus is Disrupting the Death Penalty

Reporting on the COVID-19 pandemic, criminal justice and immigration.

With a signature from Gov. Jared Polis, Colorado on Monday became the 22nd state to abolish the death penalty. But the governor’s long-planned intervention comes at a moment when capital punishment is already at a standstill across the nation for a very different reason: coronavirus.

The growing global pandemic—reaching 163 countries and more than 15,000 deaths—has at least temporarily saved two condemned men from execution in Texas, with more delays sought elsewhere. The pandemic has also stopped trials in which the death penalty was being sought. It has even upended the process for defense attorneys to try to exonerate their clients facing capital punishment.

“Almost every aspect of legal representation is at a halt in the judicial system,” said Amanda Marzullo, a consultant with the Innocence Project. “People are effectively unable to prepare and investigate their cases.”

The first delay came in Texas, where an appeals court pushed back the scheduled March 18 lethal injection of John Hummel. The Tarrant County man’s lawyers arguedthat the number of people gathering to witness and carry out the execution would risk spreading the virus. Days later, the same court postponed the March 25 execution of Tracy Beatty, giving him a similar 60-day delay “in light of the current health crisis and the enormous resources needed to address that emergency.”

In both cases, prosecutors opposed the requests to call off the executions, and Texas Department of Criminal Justice officials said they could still safely carry out the lethal injections, even after they’d barred visitors from prisons across the state.

In addition to halting executions, the coronavirus has also disrupted an exoneration. In Pennsylvania, Walter Ogrod was about to be released after more than two decades on death row for the murder of 4-year-old Barbara Jean Horn, according to the Philadelphia Inquirer. Prosecutors had agreed he was “likely innocent.” Then, the 55-year-old began coughing and developed a fever—symptoms of the COVID-19 virus. Over the weekend, a judge ordered that he be transferred from death row to a hospital outside prison.

Executions are frequently put on hold due to Supreme Court decisions and lethal injection drug shortages, but rarely do natural events play such a disruptive role. One example was in 2017, when Juan Castillo’s execution was delayed after Hurricane Harvey hit Texas. (He was executed the following year despite his long-standing claims of innocence.)

And more stays may be coming. Last week, lawyers for Oscar Smith asked the Tennessee Supreme Court to delay his June 4 execution. They said they plan to ask Gov. Bill Lee for clemency but cannot put together an application “without putting themselves and others at risk” of contracting the virus. Executions are also scheduled for May in Missouri and June in Ohio, although the latter state lacks lethal injection drugs. Several other defense lawyers told The Marshall Project they plan to ask for delays.

Robert Dunham, executive director of the Death Penalty Information Center, did not find the delays surprising.

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