States Fail to Pause Executions Despite Increased Risks Posed by COVID-19

Prisoners around the world form a uniquely vulnerable population under pandemic conditions. Many live in overcrowded cells and have limited access to hygiene or health care. This is particularly true on death row, where prison conditions are notoriously harsh. Many people under sentence of death are mentally or physically ill and some of them are elderly, placing them at heightened risk for contracting and dying from COVID-19. During this global crisis, responses regarding people on death row have varied from one state to another, with some releasing prisoners while others have created new capital offenses to punish those who violate COVID-19 regulations.

Some States Not Only Continue to Carry Out Executions but Have Also Expanded the Death Penalty to Violations of COVID-19 Regulations

China and Iran, the two countries known to carry out the most executions globally, are still carrying out executions despite having experienced serious COVID-19 outbreaks. The United States has also been actively carrying out executions during the pandemic, especially with the resumption of federal executions on July 14. State execution at any time is inhumane, but it is especially so during the pandemic. The risk of exposure to COVID-19 restricts the scope of clemency proceedings that require lawyers to be in close contact with witnesses and other individuals related to the case. Moreover, family members and spiritual leaders may not be able to visit prisoners prior to executions because of social distancing, depriving prisoners of the company and comfort that they deserve in their last moments.

Iran has executed at least 137 people in 2020 and has carried out at least 89 of those executions since March.¹ Iran temporarily released 85,000 people from prison in March to decongest overcrowded prisons during the outbreak, but most of these were non-violent offenders serving short prison sentences. We do not know whether any of those who benefitted from temporarily release were on death row.

China has also continued to carry out executions regularly, though it may have slowed the pace executions at the height of the Covid epidemic. Other countries known to have carried out executions since March include Bangladesh, Botswana, Egypt, India, North Korea, Taiwan, Saudi Arabia, Somalia, the United States, and Qatar. India, for example, carried out 4 executions on March 20—the first executions in the country since 2015.

On July 14 at 8 a.m., the federal government of the United States resumed executions for the first time in 17 years. The U.S. Supreme Court overruled the federal courts’ decisions to enjoin the executions, and allowed the government to execute Daniel Lee over the objections of the victim’s family members. Since then, the federal government has executed two more people on death row, amounting to three executions over the span of just four days. The Trump administration’s rush to resurrect executions on a federal level has been widely criticized, especially as the virus is threatening the lives of many Americans—including those who are in prison and who are involved in the execution proceedings.

Some countries have expanded their use of capital punishment as part of their response to COVID-19. North Korea has reportedly executed at least two individuals for violating pandemic rules: a trade official who broke his quarantine after returning from China and another individual who hid a January visit to China from the government. Reports indicate the North Korean government executed both individuals under military law.

The Supreme People’s Court of China issued guidelines stipulating that people who are infected with COVID-19 and deliberately spread the virus or refuse to be quarantined may be convicted of violating public security and can be punished by death. The Supreme People’s Court and several Chinese administrative agencies released a joint statement in February specifying that illegal acts that expose medical personnel to COVID-19 may result in a death sentence. Because executions are a state secret in China, we do not know whether and how often these measures have been implemented. On July 3, China executed a man who was convicted in March of killing two health officials while he was objecting to the rules meant to control COVID-19 at a checkpoint.

In Indonesia, a government agency threatened to hand down death sentences to people convicted of corruption during the pandemic. Indonesia’s Anticorruption Law prescribes that people convicted of corruption in times of natural disaster can receive a death sentence. The head of Indonesia’s Corruption Eradication Commission has asserted that the COVID-19 pandemic meets the definition of natural disaster. Consequently, corruption is arguably a capital offense in Indonesia during the life of the pandemic.

Other States Have Paused Executions and Commuted Death Sentences but Failed to Respond Adequately to the Threat Posed by COVID-19 in Prisons

On the other hand, some governments have responded to the spread of COVID-19 in overcrowded prisons by commuting sentences, including capital sentences in a handful of cases. On March 27, President Mnangagwa of Zimbabwe commuted the death sentences of prisoners who had served at least 10 years in prison to life imprisonment (he issued a similar order in 2018). In Kenya, the Mombasa Court released 8 people from death row in order to decongest Shimo La Tewa GK Prison in response to the spread of COVID-19. Cameroon commuted some death sentences by presidential decree on April 15, 2020. Such measures, however, have been largely insufficient to protect prisoners, particularly death row prisoners—many of whom suffer from severe mental or physical illnesses. FIACAT, a human rights organization working for the abolition of torture and the death penalty, criticized the presidential decree in Cameroon for being too restrictive. Because it excluded individuals in pre-trial detention and those convicted for terrorism-related offenses (more than a third of death row), FIACAT has questioned the effectiveness of the measure in addressing the health crisis in Cameroonian prisons.

Other governments have halted or delayed executions during the COVID-19 crisis, responding to the legal and public health challenges inherent in carrying out an execution during a pandemic. Some states in the United States, such as Texas and Tennessee, responded to COVID-19 by delaying their execution schedule. Indeed, there were no executions in the United States between March 5 and May 19. Texas has delayed at least eight executions since March, and at least two orders to stay executions were explicitly attributed to COVID-19, with the Texas Court of Criminal Appeals referring to the “current health crisis and enormous resources needed to address that emergency.” On July 8, Texas carried out its first execution since the COVID-19 crisis hit the United States. Execution delays are attributable to concerns about social distancing during executions, but also to concerns about legal rights such as a prisoner’s right to access counsel and the court before execution. For instance, people sentenced to death have a right to seek clemency, but the pandemic means lawyers often cannot marshall the evidence necessary for a clemency petition without risking their health. Sometimes, evidence surfaces only shortly before an execution. Lawyers would normally be able to interview witnesses and obtain expert assistance to support clemency arguments, but may not be able to do so during the pandemic.

The COVID-19 pandemic threatens the lives of people imprisoned on death row, including those who may still be appealing their cases and may one day be taken off death row. The virus has spread through Arizona’s death row, infecting at least seven people and killing one, Alfonso Salazar. Patrick Bearup, the first person on death row in Arizona to test positive, said that he and other prisoners were quarantined in a “dirty, roach-infested building without sufficient cleaning supplies and with poor water quality.” In Pennsylvania, a judge had to order that a death row prisoner, Walter Ogrod, be hospitalized and tested for COVID-19 after he displayed Covid symptoms and tested negative for the flu. In California’s San Quentin prison, where about 40% of prisoners have contracted COVID-19, four men on death row have died this summer. At least three of them are presumed to have died from complications arising from COVID-19.

Insisting on holding judicial hearings under lockdown, some countries have gone so far as to sentence individuals to death remotely, in violation of fundamental fair trial rights. In Singapore and Nigeria, people have received death sentences during hearings held via Zoom. These practices have been condemned internationally and raise many human rights and fair trial concerns.

In Pakistan, Justice Project Pakistan (JPP) has raised concerns surrounding COVID-19’s impact on prisoners’ health and fair trial rights. For example, JPP has been representing Kanizan Bibi, a mentally ill woman who has been on death row for decades. Her mental illness leaves her vulnerable in the face of COVID-19, unable to take steps to social distance. She remains in a prison cell where she does not receive specialized care, though she is so mentally ill that she is unable to speak. The Supreme Court hearing that was scheduled in her case for March 30 was cancelled because of the COVID-19 outbreak.

Conclusion

The global pandemic has created hardship worldwide, but prisoners, and especially prisoners on death row, are at particular risk. Some countries are still carrying out executions and imposing the death penalty, often exposing individuals to serious human rights violations.  Others have decreased the pace of executions and commuted some sentences, including capital sentences, in order to decongest prisons. These measures have not always proved sufficient to address the risk of contagion in prison and the right of prisoners not to be executed or sentenced to death in the midst of a global crisis that hampers their lawyers’ ability to present an adequate defense.

¹ These numbers are current as of July 22, 2020.