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 argued that 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, but state corrections officials confirmed to The Marshall Project that they have not moved Ogrod yet. They argue that the court lacked jurisdiction and that two prison doctors determined he didn't need to be tested. Ogrod's lawyer is continuing to demand he be released and tested and is asking the judge to expedite a ruling finding Ogrod innocent.
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.
“Every state that intends to go forward with an execution during this health crisis will have legal issues,” he said. “When you’re in the final weeks before an execution, access to a client is an absolute necessity and access to the courts is an absolute necessity. Where that access is impaired because of a public health emergency you simply can’t go forward.”
He added that often exculpatory evidence surfaces close to a scheduled execution, when witnesses come forward. In recent months, witnesses have emerged to bolster the eleventh-hour innocence claims of Rodney Reed in Texas and James Dailey in Florida.
With trials halted around the country, the number of new death sentences will drop, at least temporarily. Even before Colorado’s governor signed the abolition bill, a judge in Adams County postponed the trial of Dreion Dearing, who was facing a death sentence for the murder of Deputy Heath Gumm in 2018. (Dearing can still face death despite the repeal due to the timing of his charges, according to the Denver Post.) Judge Mark Warner had previously been criticized by defense lawyers for pushing the trial forward and having 250 potential jurors gather at one time, even as other courts were closing down. In Texas, jury selection for a death penalty trial in San Antonio was halted for 30 days.
In Tarrant County, Texas, prosecutors agreed to postpone the trial of Reginald Kimbro, who faces a potential death sentence if he’s convicted of the rapes and murders of two young women in 2017. Kimbro’s lawyer Steve Gordon said many jurors were elderly, and witnesses were slated to travel from Arkansas. “All trials have been postponed at this time,” said Sam Jordan, communications officer at the Tarrant County Criminal District Attorney’s Office, in an email. “The focus right now is on protecting the public health, which includes everyone involved in the trial process.”
The slowdown caused by the COVID-19 crisis is even affecting cases that would not go to trial for months. People who face a death sentence typically work with a defense investigator whose job is to gather information to sway the jury towards mercy. These specialists do most of their interviewing in person, because it allows them to gain sensitive information about mental health issues and trauma.
“If you knock on somebody’s door during a pandemic, you’re creating more barriers to relationship-building,” said Elizabeth Vartkessian, who oversees investigations for the non-profit Advancing Real Change, Inc.
There is at least one notable exception to this slowdown, which will test how long the disruption may last. Last week, a judge in Corpus Christi, Texas, approved a request from the Nueces County District Attorney's office and set an execution date for John Ramirez, who was convicted of fatally stabbing a man during a 2004 robbery.
Ramirez is scheduled to die on Sept. 9.
This story has been updated to reflect the ongoing battle between defense lawyers for Walter Ogrod and the Pennsylvania Department of Corrections over whether the death row prisoner should be released and tested for coronavirus.
Correction: An earlier version of this story included the wrong dates for the scheduled executions of John Hummel and Tracy Beatty in Texas.