In light of the seemingly ever-escalating COVID-19 pandemic, the legal dilemmas—not to mention the moral ones—surrounding capital punishment have multiplied with nearly the same exponential progression of the virus itself. Along with investigations pointing to unconscionable pain caused by lethal injection (now the federal government’s preferred method of execution), playing god to criminals is more complicated than ever.

Yet, for three prisoners sentenced to die by lethal injection, the government decided that their retribution to society—their lives—would be paid as planned.

The American Bar Association (ABA) President Patricia Lee Refo wrote to President Donald Trump to request delays for the executions of Orlando Hall, Lisa Montgomery, and Brandon Bernard. Their death penalties were set for November 19, December 8, and December 10, respectively.

The postponements were requested on account of pandemic complications obstructing the legal duties of each prisoner’s counsel. Among other necessities, lawyers must visit with their clients regularly, Refo wrote, and COVID-19 surges impede their duties detrimentally.

“Although every federally death-sentenced prisoner has a right to seek and present evidence in support of executive clemency, as well as the right to effective representation in connection with those efforts, circumstances due to the COVID-19 pandemic are presently making a nullity of those rights,” Refo wrote.

Refo also referenced the declaration of ABA Death Penalty Representation Project Director and Chief Counsel Emily Olson-Gault, which detailed seven months ago how the pandemic would likely “prevent attorneys from fulfilling their constitutional and ethical obligations in capital representation when an execution date has been set.”

Due to pandemic restrictions, Hall’s lawyers were unable to investigate to prepare a clemency petition, despite what the ABA called “significant mitigating evidence that neither the jury nor any court has ever heard,” including a possibility of racial bias (Hall was a black man convicted by an all-white jury).

Montgomery’s attorneys, too, were prevented from investigating in order to initiate a clemency petition. Her lawyers were both diagnosed with COVID-19 in mid-November after visiting their client, rendering them unable to attend to their client’s needs adequately—and Montgomery requires additional monitoring from her attorneys regarding her mental instability.

The ABA describes Montgomery as suffering from “a host of serious mental illnesses that should render her exempt from execution.” She is held at a prison medical facility where she receives “a complex cocktail of psychotropic medications to stave off recurrent psychosis.” Since her execution date was set, her attorneys assert that her prison living conditions have become inhumane and have aggravated her deteriorating mental state.

In Bernard’s case, lawyers submitted a clemency petition before the pandemic lockdowns swept across the U.S. in March 2020. However, Bernard was 18 years old at the time of the crime, and the ABA asserts there would be a “compelling case for mercy,” but one that would be eclipsed by the mid-pandemic rush to carry out these three death penalties in the coming weeks.

“There is no question that Mr. Bernard’s attorneys have been prevented from conducting the full range of fact-development they would otherwise have pursued, were it not for the pandemic,” Refo wrote.

She added that the ABA “categorically opposes the execution of any person who was under the age of (21) at the time the crime was committed.”

The federal death penalty was outlawed in the U.S. in 1972 when the Supreme Court ruled on Furman v. Georgia. However, it was reestablished in 1988 and then expanded by Congress in 1994. It was another seven years before a federal execution actually took place. Twenty-nine states still maintain legal death penalties. Capital punishment has been in decline overall for the past few decades, but Trump’s “law and order” agenda shocked new life into the federal death penalty.

Attorney General William Barr announced a restoration of the federal execution program last year. Not only did he declare the intention to jump-start the death penalty by scheduling upcoming federal executions, but also that the Justice Department would be doing so solely using pentobarbital.

Barr’s announcement soon sprouted two parallel—and macabrely ironic—headlines: First, the U.S. Justice Department carried out the same number of federal executions it had performed in the past 30 years over the course of a week. One of these was the first federal execution in about 17 years; Second, the methods currently being used to carry out the death penalty are, actually, a deeply painful, drawn-out, inhumane, and horrifying way to die.

The federal death penalty today is an IV-administered injection of a drug called pentobarbital, which attorneys told the U.S. Court of Appeals for the D.C. Circuit is an unconstitutional method of execution. Previously, lethal injection “cocktails” were used, but drug shortages and some notoriously “botched” executions led to a change. Since 2010, the majority of lethal injections have utilized pentobarbital.

Without an accompanying pain-relief medication, however, pentobarbital may trigger “excruciating pain and suffering before dying.” The sensations of the resulting condition, called a “pulmonary edema,” are akin to drowning and suffocation, accompanied by extreme fear, panic, and agony.

Limits to such suffering are detailed in the U.S. Constitution. Amendment Eight explicitly prohibits cruel and unusual punishment. The Supreme Court has been examining the potential for the death penalty to violate the Eighth Amendment since Lackey v. Texas in 1995.

There are four companies in the U.S. with FDA approval to manufacture pentobarbital for use in humans. All four refuse to sell it to the Justice Department or any prisons.

Over the past summer, the execution of an inmate named Daniel Lewis Lee was addressed with a three-judge panel expressing concern for the constitutionality of the drug’s effects in lethal injection, saying prisoners pursuing this legal path may have “plausible” claims. The court acknowledged Lee and other prisoners may have a right to pursue cases on the unconstitutionality of the execution method.

One of the judges, Judge Cornelia T.L. Pillard, wrote a partial dissent recommending Hall and Bernard’s executions be put on hold until the pentobarbital qualms were addressed.

However, the Supreme Court stepped in to overrule the lower courts, and the summer’s executions went on as planned—including Lee’s.

According to one of his lawyers, Lee was strapped to a gurney for four hours leading up to his execution following the Supreme Court’s decision. When the injection took place, witnesses said his breathing became labored and his lips turned blue.

According to Barr, it meant Lee had “finally faced the justice he deserved.” He said federal officials “owe it to the victims of these horrific crimes, and to the families left behind” to perform the executions. But the victims’ families disagreed, fighting to call off or postpone the execution.

“It just became very painfully clear to us that, as many times as it was said this was being done for the families of the victims,” said Monica Veillette, a relative of one of the victims, “…in the end, nobody cared about us at all.”

Unfortunately, the cases of Hall, Montgomery, and Bernard have fared little better than those earlier this year. Hall, whose death was scheduled for November 19, was executed using pentobarbital. His death marked the eighth federal inmate to receive lethal injection this year.

His execution was delayed by a handful of hours when U.S. District Judge Tanya S. Chutkan ordered a stay on the procedure—not for the ABA’s concerns for lacking ample opportunity to submit a clemency petition, but out of concern for the drug used for the lethal injection.

“The court is deeply concerned that the government intends to proceed with a method of execution that this court and the Court of Appeals have found violates federal law,” Chutkan said.

But in Justice Amy Coney Barrett’s first decision in the Supreme Court, the stay was overturned by Barrett and the Court’s other conservative justices, a 6-3 majority.

Hall was put to death a mere six hours after the originally scheduled time.

He exhibited labored breathing after the pentobarbital administration. He opened his mouth wide, witnesses said, as if yawning.

“This is only the end of the legal aftermath,” said Pearl Rene, the sister of Hall’s victim, Lisa Rene. “The execution of Orlando Hall will never stop the suffering we continue to endure.”

“Please pray for our family,” she added, “as well as his.”

In a statement following his execution, Hall’s lawyer Marcy Widder cited the 26 years of repenting her client had already served behind bars.

“The world was not made a better place because of his death; rather, we are all diminished by our government’s ruthless desire to kill, and its devaluing of hope and redemption,” Widder said.

On the same day as Hall’s execution, U.S. District Judge Randolph Moss ordered Montgomery’s lethal injection to be delayed beyond the set December 8 date. Though the presence and risk of COVID-19 itself were not enough for courts to postpone the other federal executions, more time was allotted for Montgomery’s case on account of both her lawyers contracting the novel coronavirus. Their illnesses, according to the judge, were reasons enough to impede the counselors’ work on the case to warrant postponement.

Montgomery is to be the first female executed in the U.S. in 70 years.

While much sympathy is unlikely to be stirred for the prisoners on death row, the question remains: what is owed to these people awaiting their own deaths? The ABA declines to contribute input regarding the morality of the death penalty, but the words of the Constitution are clear: a prisoner, like any other human in America, is owed due process of law and is legally protected from cruel and unusual punishment.

Wesley Purkey, a mentally ill inmate who was executed in July 2020, two days after Lee, used his remaining time to apologize for the pain he’d caused his victim’s family. Then, he addressed his imminent death, his final words offering a stark insight into what was about to occur:

“This sanitized murder really does not serve no purpose whatsoever,” Purkey said. “Thank you.”