Jurisprudence

The First Execution of the Pandemic

Missouri is pushing ahead to execute a possibly innocent man.

A cot with straps in an execution chamber.
AFP/Getty Images

On May 19, Missouri will conduct the first American execution since the COVID-19 crisis began. The state intends to put Walter Barton to death for killing an 81-year-old mobile home park manager nearly three decades ago. Last month, the state Supreme Court denied Barton’s request to delay the execution because of the public health dangers involved in bringing people together to carry it out.

Those dangers seem not to faze some powerful lawmakers and politicians. Barton’s execution is one glaring example of Republican Gov. Mike Parson’s grim determination to return life to normal after Missouri was shut down for two months. The governor, following his party’s playbook, has allowed Missouri’s businesses to reopen. He is also letting residents go out in public without masks, in spite of a dramatic spike in his state’s coronavirus cases.

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But the circumstances of Barton’s conviction make this rush to execution particularly concerning. “Missouri is about ready to put to death an actually innocent man,” his lawyer, Frederick Duchardt Jr., said in February. The state used a jailhouse informant and blood splatter evidence to convict Barton, both of which are notoriously unreliable.

Because of that unreliable evidence, the state had considerable difficulty convincing a jury of Barton’s guilt. In fact, he was tried five times for the murder between 1993 and 2006; the first two ended in mistrials, and his conviction was overturned on appeal twice. It was only in his fifth trial that he was convicted.

In addition, the fact of the pandemic has called into question whether Walter Barton has received full due process. COVID-19 has put much of the usual work of defending a death row inmate in the run-up to an execution on hold. Since March, Barton’s lawyer has stopped interviewing new witnesses, reinvestigating disputed evidence, and filing any new legal claims. Missouri courts have curtailed some proceedings and adopted special procedures. As Robert Dunham, director of the Death Penalty Information Center, recently explained, “When courts aren’t even capable of dealing with the ordinary business, it is unrealistic to expect they’ll be capable of dealing with extraordinary business.”

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The execution itself could also endanger others’ health.

Karen Pojmann, a spokesperson for the Missouri Department of Corrections, says the state will take special measures for Barton’s execution. The state will put in place a “robust viral containment plan and strict safety protocols.” That plan requires that everyone be screened, with a temperature check, before entering the prison where the execution will take place.

The prison where Barton will be executed has three separate viewing rooms for witnesses: one for the victim’s family, one for the family of the condemned, and a third for journalists and other witnesses. In a bizarre concession to the realities of putting people to death during a pandemic, Pojmann explained that each witness room can be limited to 10 or fewer people who can be spaced out within the room, in accordance with the state’s social distancing guidelines. She went on to say, “We have ample access to hand sanitizer, fabric face masks and other supplies, as needed.”

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While witnesses to the execution may take comfort that their presence will not unduly expose them to infection, the execution itself is going forward in spite of the request last month from a group of physicians and medical experts that death penalty states release drugs used in lethal injection to hospitals that are treating COVID-19 patients.

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Missouri’s rush to execute those convicted of capital crimes may have its paradoxes, but it falls well within historical norms in this country. It is fully in line with what happened during America’s previous pandemics.

One hundred years ago a flu pandemic wreaked havoc in the United States from 1918 to 1920. Nonetheless, the business of execution went on. In that three-year period, 236 people were put to death, making it one of the busiest stretches in the modern history of the death penalty.

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Just under one-half of the executions between 1918 and 1920 were hangings, with the other half managed by electrocution. Utah put one person to death by the firing squad.

Another pandemic hit in 1957 caused by 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.

The first pandemic of the 21st century occurred in 2009, this one associated with an H1N1 virus strain that caused 12,469 deaths in the United States. Nonetheless, 52 executions were carried out in 11 different states. All but one of them were done by lethal injection. Like older execution methods, it requires close contact between the guards responsible for the execution and the condemned.

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But, thus far, in the current crisis, capital punishment has been treated differently. Because of the risks of spreading the disease and the need for social distancing, executions across the country have been put on hold. Ohio Gov. Mike DeWine moved executions scheduled for July and August to 2022. The Tennessee Supreme Court put off an execution scheduled in June until early 2021. Even Texas, the death penalty capital of the U.S., which has reopened stores, beaches, and restaurants, has delayed six executions, citing concerns that they could not be carried out without spreading the coronavirus.

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It is odd that Missouri—with more than 10,000 COVID-19 cases and 500 deaths and where more than 50,000 people recently have filed unemployment claims—cannot see its way to the same logic. One would think that Missouri, which has carried out 89 executions since 1976, has more important things to do than killing Walter Barton.

As the Texas Court of Criminal Appeals explained when it halted that state’s executions, this nation now confronts a situation that requires marshaling “the enormous resources needed to address that emergency.” Saving American lives is far more important than putting anyone—including a possibly innocent man—to death.

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