Law360 (June 3, 2026, 7:54 PM EDT) -- Georgia can move forward with the executions of a number of incarcerated people on death row, with the state's highest court finding it made good on an agreement to pause the practice during the COVID-19 pandemic.

The Georgia Supreme Court ruled Tuesday the state had fulfilled a vaccine condition in an agreement with a federal public defender group in Georgia that required the state to pause certain executions until a vaccine for COVID-19 was "readily available."

"Given that 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, the trial court erred in concluding that the COVID-19 vaccine was not 'readily available' to all members of the public," Justice Carla Wong McMillian wrote for the court in the opinion. "We, therefore, reverse the trial court's order and remand for further proceedings consistent with this opinion."

The state was barred from executing incarcerated people who were deemed "execution-eligible" when Georgia courts first enacted COVID-related protocols during the height of the pandemic. The term execution-eligible is a reference to an incarcerated person who has exhausted their state and federal appeals and are unable to challenge the sentence in court, the justices said.

The decision is the second time the Georgia Supreme Court has issued a ruling in the case, with the justices ruling to keep the agreement in place in a December 2022 opinion. The court found at the time that an email exchange constituted a valid contract between public defenders and the state and that an execution of Virgil Delano Presnell Jr. should be paused.

The two sides created the agreement following the creation of a judicial COVID-19 task force to advise the state courts on implementing safety measures during the height of the pandemic. The task force, established by then-Georgia Supreme Court Chief Justice Harold Melton, included a subcommittee on how the pandemic was impacting the criminal justice system in Georgia.

The subcommittee invited the Georgia Association of Criminal Defense Lawyers to prepare draft legislation over concerns the pandemic had created a backlog of the number of execution-eligible people. The association said it was worried about not being able to prioritize cases if the backlog continued to mount during the pandemic.

The subcommittee ultimately asked that the defense attorneys and representatives of the Georgia Office of the Attorney General reach an agreement separately to address the backlog. The parties met, and after attempting to broker a memorandum of understanding, they were unable to agree on terms.

The parties in April 2021 finally reached consensus on terms in an email, rather than drafting a formal memorandum agreement. The agreement said the attorney general's office would not pursue executions until the court's emergency COVID order expired, the state prison resumed legal visitation and a COVID-19 vaccine was "readily available to all members of the public."

The high court calculated that the deal would impact the executions of 10 incarcerated people on death row, as well as two people whose appeals have been denied by the Eleventh Circuit.

Federal Defenders Program Inc. alleged the state violated the agreement in April 2022 when it sought an execution order for Presnell, who was its client. The Georgia Office of the Attorney General argued it was covered under sovereign immunity and could seek the execution order despite Presnell being covered under the agreement.

A trial court and the Georgia Supreme Court both found that because the email agreement was valid, the state must abide by the terms until each of the three conditions was met. The courts have continued to honor the agreement, with a district court requiring that a vaccine be approved by the U.S. Food and Drug Administration before the vaccine requirement can be considered completed.

The state appealed the FDA requirement in October 2025, contending a district court was unfairly adding requirements into the initial email agreement. The state argued that because the initial agreement did not require an "FDA-approved" vaccine, the court cannot further delay the executions, according to the opinion.

The Georgia Supreme Court agreed Tuesday, finding the state had successfully completed each of the three requirements under the agreement. A group of three justices drafted a concurring opinion saying that based on their reading of the agreement, the Georgia attorney general should be allowed to continue seeking execution orders.

A spokesperson for the Georgia Office of the Attorney General said Wednesday they intend to "pursue justice" in the capital punishment cases.

A representative of the federal defender program did not respond to a request for comment.

The state is represented by Christopher M. Carr, Jonathan David Loegel, John Henry Thompson and Logan B. Winkles of the Georgia Office of the Attorney General.

Federal Defender Program Inc. is represented by Sarah Brewerton-Palmer, Michael Adam Caplan, Katherine Wheeler Gamsey, and Cameron Blaine Roberts of Caplan Cobb LLC.

The case is State of Georgia et al., v. Federal Defender Program Inc. et al., case number S26A0364, in the Supreme Court of Georgia.

--Editing by Covey Son.

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