Georgia’s Supreme Court removed a pandemic-era roadblock to some death penalty cases, ruling that a COVID-19 vaccine condition can no longer be used by itself to keep certain executions on hold.
The court ruled June 2 in State of Georgia v. Federal Defender Program that a Fulton County judge wrongly required Food and Drug Administration (FDA) approval of COVID-19 vaccines for children under 6 months before the state could resume covered executions. The 2021 agreement said the attorney general’s office would not pursue certain execution warrants until Georgia’s judicial emergency expired, legal visitation resumed and a COVID-19 vaccine was “readily available to all members of the public.”
The fight grew out of the case of Virgil Delano Presnell Jr., who has been on Georgia’s death row for decades. After an execution order was issued for Presnell in April 2022, the Federal Defender Program sued, arguing the state had breached the pandemic-era agreement.
The lower court had permanently blocked the state from seeking certain execution orders after finding the vaccine condition unmet because COVID-19 vaccines were not FDA-approved for infants younger than 6 months. The high court disagreed, saying the agreement did not make FDA approval for every age group the controlling test.
The justices said the state produced undisputed evidence that vaccine supply is adequate and that no legal barrier prevents vaccination of any member of the public when medically appropriate. The court reversed the lower-court order and sent the case back for further proceedings.
The ruling does not schedule an execution by itself. The court noted that the separate prison-visitation condition has not yet been litigated. But with 33 inmates under death sentence in Georgia as of March 31, the decision could restart a major death penalty fight.
