On July 17, 2020, Tennessee Governor Bill Lee granted a reprieve to death-row prisoner Harold Wayne Nichols, halting his execution scheduled for August 4, 2020. Governor Lee’s decision came after the Tennessee Supreme Court denied two motions from Mr. Nichols requesting a stay of execution, and shortly after Mr. Nichols filed a civil rights lawsuit in federal court arguing that his execution date should be reset. The motions filed in state court cited the limitations and challenges the COVID-19 pandemic placed on his ability to file a clemency petition and prepare spiritually for his execution. The federal lawsuit raised similar claims and also argued that the Tennessee Supreme Court denied Mr. Nichols equal protection of law when it refused to reset his execution, but reset the executions of two other prisoners on factually similar grounds. The reprieve stays Mr. Nichols’ execution through at least December 31, 2020, at which point the Tennessee Supreme Court may set a new execution date.
Mr. Nichols is the first death row prisoner to be granted a reprieve or any type of clemency since Governor Lee became governor in 2018. In a weekly news briefing on July 24, 2020, Governor Lee cited the limitations the COVID-19 pandemic has placed on due process in clemency consideration and Mr. Nichols’ diminished access to his faith leaders as the core reasons for his decision. Governor Lee further stated that focusing state resources on preparing for executions and providing the necessary due process for a clemency petition “did not seem like the right thing to do” at the time, given the state’s ongoing efforts to combat the COVID-19 pandemic.
Clemency proceedings are complex and play a vital role in the capital case process where new evidence can emerge at late stages. The ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, quoted in Mr. Nichols’ motions for stay of execution, stress the “ongoing, exhaustive and independent” investigation required in clemency proceedings. Under the Guidelines, in order to present a complete petition for clemency, “every aspect of the client’s character, history, record and any circumstances of the offense, or other factors, which may provide a basis for a sentence less than death” must be reviewed.
As noted, Governor Lee’s reprieve followed two attempts by Mr. Nichols to obtain relief from the Tennessee Supreme Court. The first Motion, filed on April 30, 2020, argued that the court should reset the date because stay-at-home orders and the suspension of prison visitation due to COVID-19 seriously impacted Mr. Nichols’ ability to prepare an application for executive clemency with meaningful assistance of counsel. Tennessee prisons suspended all visitation in March due to the pandemic, including legal visitation, despite the fact that Mr. Nichols was under an active execution warrant at that time. Also due to the COVID-19 related prison closures, Mr. Nichols was unable to meet with his spiritual advisor, impacting his ability to prepare mentally and spiritually for his death in the weeks leading up to the execution. Counsel for Mr. Nichols raised that such visitation with a spiritual adviser prior to execution is an opportunity that is typically given to all Tennessee death row prisoners.
The Tennessee Supreme Court denied the first Motion for stay on June 4, 2020, without written explanation other than to note that the stay was denied “at this time.” Shortly thereafter, the Tennessee Supreme Court granted a stay of execution to Byron Black, who had been scheduled for execution in October 2020 and had competency proceedings scheduled in August 2020. Following the Order staying Mr. Blacks’ October 2020 execution, Mr. Nichols renewed his Motion for a stay, both in light of the growing severity of the pandemic and also on account of the court’s recent action postponing the execution date in Mr. Black’s case. In its June 22, 2020 Order denying Mr. Nichols’ renewed Motion, the Court cited the State’s arguments in opposition to resetting the date and once again denied the stay.
On June 30, 2020, Mr. Nichols filed a federal civil rights lawsuit seeking a delay of his August 4, 2020 execution. In the suit, Mr. Nichols stated that his right to equal protection was violated when the Tennessee Supreme Court twice denied Mr. Nichols’ requests to reschedule his execution due to difficulties caused by the COVID-19 pandemic, despite delaying two other executions on similar grounds. The lawsuit further alleged that Mr. Nichols’ First Amendment rights were violated since Mr. Nichols was unable to meet with and prepare for execution with his spiritual advisor due to COVID-19 restrictions on prison visitation; that his federal right to the assistance of counsel in clemency and prior to execution was infringed on by proceeding with the August 4, 2020 execution date; that his rights to minimal due process protections in clemency were violated by proceeding with the August 4, 2020 execution; and that the Tennessee attorney general had not disclosed how executions would be carried out during the pandemic to ensure the safety of witnesses and others involved.
Mr. Lee issued Mr. Nichols a reprieve as this litigation was still pending in federal court. The next execution in Tennessee is set for December 3, 2020, in the case of Pervis Payne. The pandemic has delayed state executions in multiple states. Currently, Missouri is the only state to carry out an execution during the pandemic, though, seven federal executions took place in rapid succession this summer.