Will Coronavirus Stop America from Carrying Out Executions?

Posted in: Criminal Law

Last week the coronavirus crisis came to death row. The Texas Court of Criminal Appeals, responding to that crisis, took the unusual step of granting 60-day stays of execution to John Hummel and Tracy Beatty, two inmates who were scheduled to die this month.

While the Department of Corrections assured the court that “the death chamber at the state penitentiary is isolated from the rest of the prison. It is thoroughly cleaned, consistently and constantly,” the judges were unpersuaded. Although they turned aside all other aspects of the men’s appeals, they issued stays “in light of the current health crisis.”

In yet another sign of the coronavirus’s impact, a Tennessee man convicted of a triple murder decades ago, cited the pandemic and asked that state’s supreme court to follow Texas’s lead by stopping his execution.

Moreover, on Saturday a Pennsylvania court granted an emergency order directing that Walter Ogrod be transferred from death row to a hospital “equipped to provide him with proper testing, care and treatment, including but not limited to testing for COVID-19.”

While previous state or national emergencies rarely have halted executions, the pauses they occasioned did not last long. In 2017 after Hurricane Harvey, a court withdrew an execution date because the condemned man’s attorney lived in a flooded area. And former Texas Governor Rick Perry, an ardent supporter of capital punishment, nonetheless granted a reprieve for an inmate whose execution was set for September 11, 2001.

Just seven days later, Perry allowed another execution to proceed. And, in the month following the 9/11 attacks, seven other men were put to death in states including Missouri, North Carolina, Virginia, Oklahoma, and Georgia.

Coronavirus is the latest, and may turn out to be the most devastating, in a line of pandemics that have hit the United States over the last 100 years. Those events generally have not put a dent in the death penalty.

The first, the Spanish flu (H1N1), wreaked havoc in the United States from 1918-1920. It infected as much as 25% of the U.S. population and killed over 675,000 Americans. One scholar argues that “the impact on the population was so severe that in 1918, American life expectancy was reduced by 12 years.”

Nonetheless the business of execution went on. Indeed, 236 people were put to death in that three year period, making it one of busiest in the modern history of the death penalty. Of those executions, 89 occurred in 1918 alone, the first year of the pandemic. Just under one-half of the executions between 1918 and 1920 were hangings, with the other half being done by electrocution. Utah put one person to death by the firing squad.

Another pandemic hit in 1957 caused by the so-called Asian flu (H2N2). It resulted in an estimated 116,000 deaths. That year 70 people were executed. Six of them were hanged, 15 died in the gas chamber, and the remainder in the electric chair.

Just over ten years later Hong Kong Flu (H3N2) came to the United States, killing approximately 100,000 people. There were no executions that year.

Yet that fact had little to do with the pandemic. Instead, 1968 marked the first year of an unofficial moratorium on executions in the lead-up to the Supreme Court’s 1972 Furman v Georgia decision. The court found defects in the administration of the death penalty and continued the moratorium for several more years before executions resumed in 1977.

The first pandemic of the twenty-first century occurred in 2009, this one associated with an H1N1 virus strain. CDC estimates it caused 60.8 million cases, 274,304 hospitalizations, and 12,469 deaths in the United States.

Amid all this illness and death 52 executions were carried out in 11 different states. All but one of them were done by lethal injection. Like older execution methods, this one requires close contact between the guards responsible for the execution and the condemned.

The history of pandemics suggests that they often produce a kind of backlash in which citizens and government officials look for scapegoats and take out their anger and frustration on particular groups. People on death row provided convenient targets for those determined to carry on even the most morbid of activities.

However, in recent years Americans have come to recognize serious flaws in the death penalty system, including conviction of the innocent, racial prejudice in death sentencing, and the risk of botched executions. This recognition has led to sharp declines in both death sentences and executions as well as declining public support for capital punishment. It also should lead the United States to break the pattern of the last century in which capital punishment flourished during pandemics.

As the coronavirus spreads, this country must, in the words of the Texas Court of Criminal Appeals, marshal “the enormous resources needed to address… [our present] emergency.” This effort is far more important than keeping America’s death penalty system up and running.

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