Virgil Presnell Jr. (Georgia Department of Corrections)
ATLANTA - The Georgia Supreme Court on Tuesday cleared a major legal obstacle that has delayed executions in Georgia since the COVID-19 pandemic, ruling that the state can move forward with a pandemic-era agreement that had blocked the scheduled execution of convicted child killer Virgil Delano Presnell Jr.
Executions put on hold
The backstory:
Executions in Georgia were effectively put on hold during the COVID-19 pandemic after state officials and attorneys representing death row inmates reached an agreement governing when executions could resume. The agreement was negotiated in 2021 after executions stopped in 2020 because of the coronavirus pandemic, even as death row inmates continued exhausting their appeals and becoming eligible for execution.
Under the agreement, the state promised not to seek execution warrants for certain death row inmates until six months after three conditions were met: the expiration of Georgia's COVID-19 judicial emergency, the return of normal prison visitation and the availability of a COVID-19 vaccine "to all members of the public."
Who is Virgil Delano Presnell Jr.
What we know:
The agreement became central to the case of Virgil Delano Presnell Jr., who was convicted of kidnapping, raping and murdering 8-year-old Lori Smith in Cobb County in 1976. Prosecutors said Presnell abducted Smith and her 10-year-old friend as they walked home from school, raped the older girl, drowned Lori Smith in a creek and left the surviving child locked in the trunk of his car before abandoning her in a wooded area. He was sentenced to death in 1976, won a new sentencing trial decades later and was again sentenced to death in 1999.
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Execution halted
In 2022, Georgia obtained an execution warrant for Presnell. His attorneys sued, arguing the state had violated the pandemic agreement because not all conditions had been met. A Fulton County judge agreed and halted the execution less than 24 hours before it was scheduled to take place. The execution never happened, and the legal dispute remained unresolved for years.
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The key disagreement centered on the vaccine requirement. Attorneys for death row inmates argued the condition had not been satisfied because COVID-19 vaccines were not approved for children younger than 6 months old. A Fulton County judge agreed and blocked the state from moving forward with executions covered by the agreement.
Ruling reversed by Georgia Supreme Court
What we know:
On Tuesday, the Georgia Supreme Court reversed that ruling. The justices unanimously concluded that the agreement required vaccines to be "readily available" to the public but did not require FDA approval for every age group. The court found that COVID-19 vaccines are now widely available and that no legal barrier prevents doctors from administering them if medically appropriate. As a result, the court ruled that the vaccine condition has been satisfied.
The ruling does not immediately set an execution date for Presnell, and the case returns to the lower court for additional proceedings. The Supreme Court noted that questions involving another condition in the agreement related to prison visitation have not yet been fully litigated.
Still, the decision removes the biggest legal obstacle that prevented the state from pursuing Presnell's execution. It also has implications beyond his case because the agreement applied to multiple death row inmates whose appeals became final during the pandemic. By ruling that the vaccine requirement has been met, the Supreme Court has made it significantly easier for Georgia to move forward with executions involving inmates covered by the COVID-era agreement.
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