The availability of COVID-19 vaccines for babies played a key role in a Georgia Supreme Court decision involving death row inmates. Scott Olson/Getty Images
The Georgia Supreme Court ended an agreement preventing the execution of nine death row inmates, even though the Food and Drug Administration hasn’t approved the COVID-19 vaccine for children under the age of 6 months.
Here’s how those two things are related.
According to the court, the 2021 agreement stated that the attorney general’s office would not pursue execution warrants for certain prisoners whose petitions for a rehearing had been denied while the state was under an emergency order during the pandemic.
Under the agreement, the process could move forward six months after three conditions had been met: the COVID-19 judicial emergency order had been lifted, the Georgia Department of Corrections had resumed its normal visitation policy and “a vaccination against COVID-19 is readily available to all members of the public.”
Attorneys for the Federal Defender Program, a nonprofit that represents death row inmates, argued that jails have not resumed their normal visitation policies and COVID vaccines are not available to all members of the public. The vaccines are not recommended by the FDA for infants until they are 6 months old.
In oral arguments before the Supreme Court in March, Sarah Brewerton-Palmer, an attorney representing the Federal Defender Program, said the agreement’s language is clear.
“Everyone should be able to count on the state to follow its word, but instead the state still refuses to accept the plain language of the agreement,” she said.
But Georgia Solicitor General John Henry Thompson said the defenders’ interpretation was flawed.
“Under our reading, the condition was satisfied when a patient’s ability to receive the vaccine was no longer restricted by supply constraints and state rationing but by the same background principles that have always governed the practice of medicine,” he told justices during oral arguments.
Thompson argued that no medical treatment is ever available to every human from birth to death. He said even if the FDA approves the treatment for newborns, the other side could point to a more limited exception, such as patients with severe allergies.
Thompson said the agreement had been intended to make sure justice was served during a time of emergency, but the justice system is back to normal operation.
“These nine inmates have received the reprieve their attorneys bargained for,” he said. “They cannot be allowed to escape justice permanently.”
The court sided with Thompson in an opinion authored by Justice Carla Wong McMillian that was released Tuesday.
McMillian found that the supply of COVID-19 vaccines now exceeds demand, and despite the FDA not recommending the shots for newborns, no regulation would prevent a doctor from administering it to a baby if they found it medically necessary.
“The State produced undisputed evidence that the supply of the COVID-19 vaccine is adequate for all members of the public to obtain the vaccine and that no legal impediment exists for all members of the public to be vaccinated, if deemed medically appropriate,” she wrote.
As of March, there were 33 people on death row in Georgia. The last person executed in Georgia was Willie James Pye, who was put to death March 20, 2024 after being convicted of a 1996 murder.
The case now heads back to Fulton County Superior Court.
The question of whether prison visitation has returned to normal has not been litigated.
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