Selective COVID-Era Execution Moratoria and Equal Protection: Commentary on Humphreys v. Commissioner, Georgia Department of Corrections

I. Introduction

This commentary analyzes the Eleventh Circuit’s published order in Stacey Ian Humphreys v. Commissioner, Georgia Department of Corrections, No. 25-14325 (11th Cir. Dec. 15, 2025), denying a stay of execution to a Georgia death-row prisoner who challenged the State’s COVID-19 execution-deferral agreement on equal protection and due process grounds.

The decision addresses a novel situation: Georgia, during the COVID-19 pandemic, entered into a written agreement with the capital defense bar not to seek execution warrants for a narrowly defined subset of death-sentenced prisoners (the “Covered Inmates”) until three pandemic-related conditions were satisfied. Humphreys is not in that subset solely because of the date on which the Eleventh Circuit denied rehearing in his federal habeas case. He claimed that this temporal line-drawing produces an unconstitutional two-tiered system of death-row prisoners.

The Eleventh Circuit rejects both his Equal Protection Clause and Due Process Clause claims and holds that he has not shown a “substantial likelihood of success” on appeal—thereby denying his emergency motion to stay execution pending appeal. Along the way, the court:

• Affirms that a state cannot insulate itself from equal protection review simply by embedding classifications in a contract with private actors.
• Clarifies that there is no “fundamental right to an extra day of life” for purposes of equal protection scrutiny of execution scheduling.
• Applies rational-basis review to uphold a date-based classification in a COVID-era execution moratorium agreement.
• Reaffirms that procedural due process in clemency for death-row inmates requires only “minimal procedural safeguards” under Ohio Adult Parole Auth. v. Woodard.
• Reiterates the demanding standard for stays of execution in § 1983 litigation challenging aspects of execution timing or procedures.

This opinion will be an important reference point for future challenges by other “non-covered” Georgia death-row prisoners and more broadly for constitutional attacks on selective or negotiated moratoria in capital punishment regimes.

II. Summary of the Opinion

Humphreys was sentenced to death in 2006 for double murder and related offenses. After he exhausted direct review and federal habeas proceedings, Georgia obtained an execution warrant on December 1, 2025, with execution scheduled for December 17, 2025.

Before the warrant issued, Humphreys filed a 42 U.S.C. § 1983 action alleging that Georgia’s COVID-era execution agreement with the Federal Defender Program and others—under which the State promised not to seek execution warrants against a defined category of prisoners until three conditions were met—violated his equal protection and due process rights because he was arbitrarily excluded from its protections. He sought injunctive relief to prevent his execution.

The district court dismissed the complaint for failure to state a claim and denied both a preliminary injunction and a temporary restraining order. Humphreys appealed and moved in the Eleventh Circuit for a stay of execution pending appeal.

Applying the four-factor test for a stay, the Eleventh Circuit:

1. Equal Protection Claim: The court accepts that Humphreys and the Covered Inmates are similarly situated and that the State’s actions are “state action” subject to equal protection scrutiny even though the classification arises from a contract negotiated with private defense counsel. However, it holds that rational-basis review applies because:
   • No suspect or quasi-suspect class is involved.
   • There is no “fundamental right to life” in the relevant, carefully described sense (i.e., a right to an extra day of life or to avoid a lawfully imposed death sentence once final).
   Under rational-basis review, the court finds that the State’s temporal classification—protecting only those whose Eleventh Circuit rehearing petitions were denied during Georgia’s COVID-19 judicial emergency—is rationally related to legitimate interests: ensuring adequate clemency preparation for those most affected by pandemic restrictions and preserving the State’s ability to enforce death sentences in a timely manner.
2. Due Process Claim: The court recognizes, following Justice O’Connor’s controlling concurrence in Woodard, that death-sentenced prisoners possess a limited liberty interest in clemency proceedings warranting minimal procedural safeguards. It also assumes without deciding that the execution agreement might create a state-based liberty interest in certain procedural protections. Nonetheless, the claim fails because Humphreys has not alleged or shown any actual denial of constitutionally adequate process: he has notice of his clemency hearing, opportunity to present his case, and does not identify specific impediments to clemency or pre-execution litigation.
3. Other Stay Factors: While acknowledging that execution is always an irreparable injury, the court emphasizes that irreparable harm must flow from the alleged constitutional violation, not from the lawful sentence itself. Because Humphreys has not shown a substantial likelihood of success on the merits, the balance of harms and the public interest favor the State’s and the victims’ interest in the timely enforcement of criminal judgments.

On that basis, the Eleventh Circuit denies Humphreys’s motion for a stay of execution pending appeal.

III. Background and Context

A. Georgia’s COVID-19 Judicial Emergency and Execution Agreement

During the COVID-19 pandemic, the Chief Justice of the Georgia Supreme Court issued a series of judicial emergency orders from March 14, 2020, through June 30, 2021 (the “COVID-19 Emergency Period”). These orders significantly disrupted court operations and related functions, including the preparation and conduct of clemency proceedings for death-row inmates.

A task force established by the Chief Justice identified a growing backlog of “execution-eligible” prisoners—those whose convictions and sentences were final after the U.S. Supreme Court denied certiorari on federal habeas review. The capital defense bar argued that COVID-19 restrictions made it extremely difficult to:

• Prioritize and conduct clemency investigations for the increasing number of execution-eligible clients, and
• Meet face-to-face with clients and investigate mitigation evidence.

To address these concerns, the Deputy Attorney General for the Criminal Justice Division sent an email (the “Agreement”) committing the State not to seek execution warrants in certain cases until three conditions were satisfied:

1. The expiration of the final statewide COVID-19 judicial emergency order.
2. The resumption of normal Department of Corrections legal visitation (i.e., lifting pandemic restrictions on attorney-client visitation).
3. The availability of a COVID-19 vaccine “readily available to all members of the public.”

The Attorney General’s Office further stated that it would not seek execution warrants for any prisoner until at least six months after all three conditions were met. Crucially, however, the Agreement applied only to “death-sentenced prisoners whose petition for rehearing or rehearing en banc was denied by the Eleventh Circuit while the State of Georgia remained under judicial emergency order,” i.e., during the COVID-19 Emergency Period.

B. State v. Federal Defender Program, Inc. and the Scope of the Agreement

In State v. Federal Defender Program, Inc., 882 S.E.2d 257 (Ga. 2022), the Federal Defender challenged Georgia’s attempt to execute Virgil Presnell, a prisoner whose Eleventh Circuit petition was denied during the COVID-19 Emergency Period and who therefore clearly fell within the Agreement’s defined class.

The Georgia courts, including the Georgia Supreme Court, concluded that the Federal Defender had shown a substantial likelihood that:

• The Agreement was a valid and binding commitment by the State, and
• The second and third conditions (resumption of normal visitation and vaccine availability to the entire public) had not yet been satisfied at the time Georgia sought Presnell’s warrant.

Subsequently, in May 2025, a Georgia superior court permanently enjoined state officials from seeking execution warrants for the “Covered Inmates” until the Agreement’s triggering conditions were satisfied. The trial court held that at least the vaccination condition had not been met because COVID-19 vaccines were still not readily available for children under six months old. The State appealed that decision to the Georgia Supreme Court, and that appeal was still pending when the Eleventh Circuit decided Humphreys.

Thus, Covered Inmates gained enforceable state-law protection against the State’s seeking of execution warrants. By contrast, prisoners like Humphreys, who became execution-eligible after June 30, 2021, fell outside the Agreement’s coverage.

C. Related Federal Litigation: Pye and Pace

The opinion references two related federal cases:

• Pye v. Oliver: William Pye, another Non-covered Inmate, filed a similar § 1983 challenge shortly before his execution. The district court dismissed for failure to state a claim. The Eleventh Circuit affirmed on res judicata grounds because Pye had already litigated similar claims in state court.
• Pace v. Oliver: In Pace, a group of death-sentenced prisoners whose execution warrants had not yet issued brought comparable constitutional challenges. The district court dismissed for lack of standing, reasoning that without an execution warrant they had not yet suffered a concrete injury. That appeal was argued in the Eleventh Circuit and remained pending when Humphreys was decided.

Humphreys initially sought to stay his district court case pending the outcome in Pace, but before that motion was resolved, Georgia obtained his execution warrant, prompting his TRO and preliminary injunction motion and, subsequently, the instant emergency motion for a stay of execution pending appeal.

IV. Analysis of the Court’s Legal Reasoning

A. The Stay Standard

The court begins by setting out the familiar, four-factor test for staying an execution pending appeal, drawn from James v. Sec’y, Dep’t of Corr., 130 F.4th 1291 (11th Cir. 2025), and Valle v. Singer, 655 F.3d 1223 (11th Cir. 2011):

1. Substantial likelihood of success on the merits;
2. Irreparable injury absent a stay;
3. No substantial harm to the opposing party if the stay is granted; and
4. The stay would not be adverse to the public interest.

The Eleventh Circuit treats the “substantial likelihood of success” prong as the linchpin, and the bulk of the opinion focuses on whether Humphreys’s equal protection and due process theories have any realistic chance of succeeding on appeal.

B. Equal Protection Analysis

1. Similarly Situated Persons and State Action

The court first asks whether there is disparate treatment of similarly situated persons attributable to state action. It holds that both requirements are met.

On similarity, the court notes that both Covered and Non-covered Inmates are “execution-eligible” in the same sense: each has exhausted his direct and collateral appeals. Absent the Agreement, the State would be equally entitled to seek execution warrants for any such inmate.

Yet, under the Agreement, the State has voluntarily bound itself not to seek warrants for Covered Inmates, while it has already obtained warrants for Humphreys and at least one other Non-covered Inmate. That difference in treatment is precisely the kind of classification that implicates equal protection.

The State argued that Covered and Non-covered Inmates are not similarly situated because Humphreys is not a party to the Agreement. The Eleventh Circuit correctly characterizes this response as circular: the fact that the State drew a line through the Agreement is the very classification being challenged. To treat “being within the Agreement’s terms” as a disqualifying difference would effectively make any contract-based classification self-justifying and immunize it from equal protection review.

On state action, the court emphasizes that:

• The classification is a governmental one: the State drafted and adopted the limitation defining Covered Inmates.
• The crucial narrowing language—limiting the Agreement to those whose rehearing petitions were denied during the judicial emergency—came from the State’s own April 14, 2021 email, not from defense counsel.

The court rejects the idea that the State can sidestep equal protection by embedding the classification in a negotiated agreement with private counsel. Citing cases such as Price v. City of Chicago, 251 F.3d 656 (7th Cir. 2001), and Green v. Waterford Bd. of Educ., 473 F.2d 629 (2d Cir. 1973), it affirms a straightforward proposition: when the State chooses to be bound by a classification—here, who may and who may not be executed under specified conditions—that is state action subject to constitutional review, even if the classification appears in a contract.

This aspect of the opinion is significant in its own right: it forecloses any argument that a “negotiated” classification in a death-penalty moratorium is immune from equal protection scrutiny simply because it arose from bargaining with a private party.

2. Level of Scrutiny: Is There a “Fundamental Right to Life” in This Context?

Having found disparate treatment of similarly situated persons, the court turns to the proper level of scrutiny.

Under Eleventh Circuit precedent (e.g., Jones v. Governor of Florida, 975 F.3d 1016 (11th Cir. 2020) (en banc)), a classification receives heightened scrutiny only if it:

• Targets a suspect or quasi-suspect class (e.g., race, national origin, gender), or
• Implicates a fundamental right.

No suspect class is at issue; the only potential trigger for heightened scrutiny is an asserted fundamental right.

The court applies its standard two-step test for fundamental rights, drawn from Morrissey v. United States, 871 F.3d 1260 (11th Cir. 2017), and Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005):

1. First, “carefully describe” the asserted right.
2. Second, determine whether that right is “objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.”

Humphreys defined the fundamental right as the “right to continue living,” even for one more day, after his conviction and death sentence have become final. He argued that because the denial of the Agreement’s protections shortens his life by some increment, strict scrutiny should apply.

The court rejects this framing. While acknowledging that a person undeniably has an “interest in his life,” it holds that Humphreys’s formulation is too broad and unsupported by authority. In support of a “life” interest, Humphreys cited Justice O’Connor’s controlling concurrence in Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998), which recognized that a death-sentenced inmate has a due process interest in clemency proceedings warranting “some minimal procedural safeguards.”

But Woodard, as the Eleventh Circuit points out, does not declare a fundamental substantive right to life in the sense necessary to trigger strict scrutiny. It recognizes only a limited procedural interest in how clemency is administered. If every court order that moved an execution date one day closer implicated a fundamental right, then:

• Routine scheduling orders and denials of continuances in capital cases would require strict scrutiny, and
• Courts would be constitutionally constrained from managing their own dockets in death-penalty matters.

The Eleventh Circuit emphatically rejects that implication as inconsistent with existing Supreme Court and circuit precedent.

Humphreys also invoked M.L.B. v. S.L.J., 519 U.S. 102 (1996), where the Supreme Court applied heightened scrutiny to mandatory appellate fees that barred a parent from appealing the termination of her parental rights. The Eleventh Circuit reads M.L.B. narrowly, emphasizing that it concerned “family association” rights (marriage, family, and child-rearing), not a general right to life or to delay a lawfully imposed punishment. The court finds no basis to extend M.L.B. to the capital sentencing context.

Accordingly, the court applies rational-basis review to the temporal classification embedded in the Agreement.

3. Rational-Basis Review Applied

Under rational-basis review, a classification must be “rationally related to some legitimate government interest.” The standard is extremely deferential: the court will uphold the classification if “there is any reasonably conceivable state of facts that could provide a rational basis” for it. See FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). Yet, as the Eleventh Circuit notes (citing Deen v. Egleston, 597 F.3d 1223 (11th Cir. 2010)), rational basis is not entirely “toothless.”

Georgia advanced two governmental interests:

1. Protecting the fairness and adequacy of clemency and pre-execution processes during the pandemic, particularly in light of severe restrictions on lawyer access to clients and investigation resources.
2. Maintaining the State’s ability to carry out lawfully imposed death sentences in a timely manner, an interest recognized as “strong” and “obvious” in cases like Jordan v. Comm’r, Miss. Dep’t of Corr., 947 F.3d 1322 (11th Cir. 2020).

The Eleventh Circuit deems both interests legitimate. It then explains why limiting the Agreement’s protections to prisoners whose appeals became final during the COVID-19 Emergency Period is rationally related to these interests:

• At the time the Agreement was formed, those whose appeals ended during the emergency faced the most acute risk that pandemic restrictions would impede clemency preparation and related litigation. It was reasonable to focus special protection on the group most likely to have their rights affected.
• The State reasonably needed to avoid open-ended constraints that might indefinitely block all executions. Even years later, litigation continues over whether the Agreement’s conditions (especially vaccination availability to the entire public, including infants) have been met. If the Agreement had covered all death-sentenced prisoners indefinitely, the State might have been deterred from entering any protective agreement at all.

The court explicitly connects this reasoning to a forward-looking perspective: limiting the Agreement’s scope was a rational compromise between:

• Addressing the most urgent fairness concerns during the pandemic, and
• Preserving the State’s long-term capacity to execute final capital judgments.

Thus, the date-based classification in the Agreement is not irrational, arbitrary, or animus-driven; it is at least plausibly connected to concrete, legitimate governmental goals. Under rational-basis review, that suffices.

Accordingly, the court concludes that Humphreys’s equal protection challenge lacks a substantial likelihood of success on appeal.

C. Procedural Due Process Analysis

The court then turns to Humphreys’s procedural due process claim. To prevail on such a claim, a plaintiff must show:

1. A deprivation of a constitutionally protected liberty or property interest;
2. State action; and
3. Constitutionally inadequate process.

See Howard v. Coonrod, 134 F.4th 1136 (11th Cir. 2025); Resnick v. KrunchCash, LLC, 34 F.4th 1028 (11th Cir. 2022).

1. Liberty Interest in Clemency Proceedings

Humphreys first asserts a liberty interest in his clemency proceedings. Justice O’Connor’s controlling concurrence in Woodard recognizes “a due process interest in the context of state clemency proceedings for death row inmates.” Under that approach, a state may not administer clemency in an entirely arbitrary or capricious way; some minimal procedural safeguards are required.

The Eleventh Circuit assumes that Humphreys has such a federally protected clemency-related interest and that state action plainly exists. However, the claim fails on the third element: he has not alleged that the process he is receiving is below the constitutional floor.

The opinion’s comparison to Woodard is telling:

• In Woodard, the prisoner received only three days’ notice of his clemency interview and ten days’ notice of his clemency hearing, could not testify, and could not present documentary evidence.
• Despite these constraints, the Supreme Court (through Justice O’Connor’s concurrence) found no due process violation.

By contrast, Humphreys has at least fourteen days’ notice of his clemency hearing and has not shown that he is barred from presenting evidence or argument. The court notes that while he alleged that legal visitation remains “severely restricted” relative to pre-pandemic conditions, he did not explain how those restrictions concretely hamper his clemency preparation or litigation.

Given the extremely low constitutional baseline articulated in Woodard, the Eleventh Circuit finds that Humphreys has not alleged a denial of “fundamental fairness” as required by Pennsylvania v. Finley, 481 U.S. 551, 557 (1987).

2. State-Created Liberty Interest in the Agreement’s Protections

Humphreys also claims that the Agreement itself created a state-based liberty interest in certain procedural protections (adequate representation, pre-execution preparation time, etc.) that should apply to all death-row prisoners, not only those formally within the Agreement’s class.

The court assumes arguendo that such a state-created liberty interest could exist, but again finds his claim deficient on the process prong. Even if one posits a liberty interest in the Agreement’s procedural guarantees, Humphreys still must show that he has been denied constitutionally adequate process. He has not:

• Identified any specific manner in which his clemency or pre-execution litigation is being impaired,
• Explained what he cannot do now that the Agreement would have enabled him to do, or
• Shown that the constraints he faces fall below the minimal protections recognized in Woodard.

Thus, even on the most generous reading of the asserted liberty interests, the due process claim does not present a substantial likelihood of success.

D. The Remaining Stay Factors

1. Irreparable Injury

The Eleventh Circuit acknowledges—as it and other courts often do—that the execution of a death-sentenced prisoner constitutes an irreparable injury; once carried out, it cannot be undone. See, e.g., In re Holladay, 331 F.3d 1169, 1177 (11th Cir. 2003).

However, the court emphasizes a crucial nuance: the irreparable injury that matters for purposes of a stay analysis must be tied to the alleged constitutional violation. The mere fact that execution is irreversible cannot, standing alone, justify a stay in every case; otherwise, any death-row inmate, regardless of the merits of his claim, could halt his execution.

Because Humphreys has not shown a substantial likelihood of success on the constitutional merits, the irreparable nature of execution does not, by itself, warrant relief.

2. Balance of Harms

Humphreys argued that a stay would not harm the State since it only prevents an “unconstitutional” execution and that he acted diligently in bringing his claim, filing only after the U.S. Supreme Court denied certiorari in his habeas case. He pointed to the Pace district court’s standing decision as a reason he could not have filed much earlier.

The Eleventh Circuit is unconvinced. Because Humphreys’s constitutional claims are weak, the assumption that the execution would be unconstitutional cannot carry the balance-of-harms analysis. On the other side of the scale, the State has a recognized interest in enforcing its criminal judgments without undue delay, especially after prolonged litigation has concluded.

The court notes that even if Humphreys was diligent, diligence alone cannot transform a weak claim on the merits into a winning balance-of-harms argument.

3. Public Interest

Finally, the court considers the public interest. Humphreys correctly asserts that the public has a strong interest in ensuring that government officials comply with the Constitution. But, again, that interest weighs heavily only where there is some substantial indication that a constitutional violation has occurred or is imminent.

Here, because the court finds no substantial likelihood of success on the merits, the public interest instead aligns with:

• The State’s interest in enforcing valid, final judgments, and
• The victims’ interest “in the timely enforcement of a sentence,” as recognized in Hill v. McDonough, 547 U.S. 573, 584 (2006).

Thus, the public interest factor, like the balance-of-harms factor, weighs against granting a stay.

V. Precedents and Authorities: How They Shaped the Decision

A. Equal Protection and Levels of Scrutiny

• Jones v. Governor of Florida, 975 F.3d 1016 (11th Cir. 2020) (en banc): Reaffirmed that heightened scrutiny applies only where a classification burdens a fundamental right or targets a suspect/quasi-suspect class. This framework undergirds the Eleventh Circuit’s rejection of strict scrutiny in Humphreys.
• Morrissey v. United States, 871 F.3d 1260 (11th Cir. 2017) and Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005): Provide the two-step test for recognizing fundamental rights—careful description and historical grounding—which the court applies to reject a broad “right to an extra day of life.”
• FCC v. Beach Commc’ns, Inc., 508 U.S. 307 (1993) and Deen v. Egleston, 597 F.3d 1223 (11th Cir. 2010): Supply the highly deferential rational-basis standard of review and the caution against turning that standard into a mere formality.
• M.L.B. v. S.L.J., 519 U.S. 102 (1996): Cited by Humphreys but narrowly construed by the court as confined to family association rights and not extended to capital execution timing.

B. Clemency and Procedural Due Process

• Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998) (O’Connor, J., concurring): Recognizes a limited due process interest in clemency proceedings, requiring only “some minimal procedural safeguards.” This precedent sets a very low bar for the procedural adequacy of clemency, which Humphreys does not meet.
• Gissendaner v. Comm’r, Ga. Dep’t of Corr., 794 F.3d 1327 (11th Cir. 2015): Holds that Justice O’Connor’s concurrence in Woodard is controlling and applies its minimal procedural standard in the Eleventh Circuit. The court relies on Gissendaner as binding circuit authority.
• Pennsylvania v. Finley, 481 U.S. 551 (1987): Emphasizes that the Due Process Clause guarantees only “fundamental fairness,” not optimal or maximum procedures.

C. Execution, Finality, and Stays

• Hill v. McDonough, 547 U.S. 573 (2006): Recognizes the State’s and victims’ interest in the timely enforcement of capital sentences and encourages courts to consider delay-based equities in stay requests.
• In re Holladay, 331 F.3d 1169 (11th Cir. 2003): Acknowledges that execution is a per se irreparable injury while still requiring a separate merits showing for a stay.
• James v. Sec’y, Dep’t of Corr., 130 F.4th 1291 (11th Cir. 2025) and Valle v. Singer, 655 F.3d 1223 (11th Cir. 2011): Provide the governing four-factor standard for stays of execution pending appeal.

D. State-Law Backdrop: State v. Federal Defender Program, Inc.

The Georgia Supreme Court’s decision and the subsequent trial court injunction in Federal Defender Program play a critical contextual role:

• They establish that, as a matter of Georgia law, the Agreement is binding and enforceable for Covered Inmates.
• They underscore that the second and third conditions (visitation and vaccine availability) remain contested and likely unsatisfied years after the judicial emergency ended.
• They reinforce the Eleventh Circuit’s view that the State had a rational reason to limit the scope of the Agreement to avoid indefinite paralysis of its capital punishment system.

The Eleventh Circuit does not question the enforceability of the Agreement for Covered Inmates; instead, it accepts that the Agreement has real legal bite in state court while holding that the Equal Protection Clause does not require extending those protections to similarly situated but later-finalized prisoners.

VI. Complex Concepts Simplified

A. Equal Protection and Levels of Scrutiny

The Equal Protection Clause of the Fourteenth Amendment prohibits states from treating similarly situated people differently without a valid reason. But not every difference in treatment is unconstitutional. Courts use different “tiers” of scrutiny:

• Strict scrutiny (most demanding): For laws that burden fundamental rights (like voting, marriage) or target suspect classes (like race). The State must show the law is narrowly tailored to serve a compelling interest.
• Intermediate scrutiny: For quasi-suspect classes (like gender). The State must show the law is substantially related to an important interest.
• Rational-basis review (least demanding): For all other classifications, including ordinary economic and administrative distinctions. The law is upheld if there is any conceivable rational link to a legitimate government interest.

In Humphreys, the Eleventh Circuit held that:

• No suspect or quasi-suspect class was affected; and
• There is no recognized “fundamental right to an extra day of life” after a lawful death sentence is final.

Therefore, rational-basis review applied. Under this forgiving standard, almost any plausible governmental justification will suffice, which is why the court readily accepted the State’s reasons.

B. Procedural Due Process and Clemency

Procedural due process concerns how the government takes away life, liberty, or property—not necessarily whether it may do so. A prisoner who has received a constitutionally valid death sentence has already been deprived of liberty pursuant to due process of law.

However, the Supreme Court in Woodard recognized that clemency proceedings (the executive’s discretionary power to commute a sentence or grant mercy) must still be conducted with some basic procedural fairness. This does not mean:

• A right to counsel in clemency, or
• A right to present unlimited evidence, or
• A right to a particular amount of preparation time.

It means simply that clemency cannot be administered in a wholly arbitrary, capricious, or random way (for example, deciding clemency by flipping a coin or providing no notice whatsoever).

In Humphreys, the court found that:

• He had notice of his clemency hearing well in advance;
• He had opportunity to present arguments; and
• He did not show concrete barriers to preparation or advocacy.

Thus, the minimal procedural floor set by Woodard was satisfied.

C. State-Created Liberty Interests

Sometimes, state laws or policies create “liberty interests” that go beyond what the federal Constitution itself guarantees. For example, a state prison regulation might create a right to certain hearing procedures before a disciplinary sanction. If so, the Due Process Clause may require the State to honor its own procedural promises.

Humphreys argued that the Agreement created such a state-based liberty interest in adequate representation and preparation for clemency and pre-execution litigation. The Eleventh Circuit did not definitively resolve that question. It assumed, for argument’s sake, that even if such an interest existed, Humphreys would still have to show that he was being deprived of it without constitutionally adequate procedures. Because he did not demonstrate any serious procedural deficit, his due process claim still failed.

D. Execution Warrants and “Execution-Eligible” Prisoners

Under Georgia practice, a death-sentenced prisoner becomes “execution-eligible” after:

1. Completing direct appeal proceedings in the state courts;
2. Losing state and federal postconviction (habeas) challenges; and
3. Having the U.S. Supreme Court deny certiorari on federal habeas review.

At that point, the State may apply for a judicial order—an execution warrant—authorizing the Department of Corrections to carry out the sentence within a fixed window of time.

The COVID-19 Agreement specifically concerned when the State would seek such warrants for certain execution-eligible prisoners, not the underlying validity of their convictions or death sentences.

VII. Impact and Future Implications

A. Immediate Effects for Georgia’s Death Row

The most direct implication of Humphreys is that Georgia may continue to enforce death sentences against prisoners whose federal habeas appeals became final after June 30, 2021, without extending the Agreement’s procedural and timing protections to them.

Barring further state-court developments, the Agreement remains enforceable only for Covered Inmates. Prisoners like Humphreys, who are execution-eligible but not covered, cannot successfully invoke the Equal Protection Clause to demand the same execution moratorium.

B. Guidance for Future § 1983 Challenges

This decision will likely shape the trajectory of pending and future § 1983 suits by Non-covered Inmates in several ways:

• Equal protection claims based on the COVID-19 Agreement will be disfavored. The Eleventh Circuit has now held, in a published order, that the temporal distinction in the Agreement is rational. District courts in the circuit will likely follow this reasoning to dismiss similar claims at the pleading stage.
• Procedural due process claims must allege concrete procedural shortfalls. General complaints about limited visitation or shortened timelines will not suffice; plaintiffs must show specific deficits that fall below the minimal protections recognized in Woodard.
• Stays of execution in this context will be difficult to obtain. Given the Eleventh Circuit’s emphasis on the merits prong and on tying irreparable injury to the alleged violation—rather than to execution itself—future capital inmates will face a high bar in similar cases.

C. Broader Lessons for Contract-Based Moratoria

Beyond Georgia, Humphreys provides two important lessons about negotiated or policy-based moratoria on executions or other criminal sanctions:

1. Such agreements are subject to equal protection scrutiny. A state cannot avoid constitutional review by incorporating its policy choices into contracts with private parties. If the government draws a line that affects who is executed and when, that line remains a “classification” under the Equal Protection Clause.
2. Reasonable temporal or categorical limits can survive rational-basis review. Governments may rationally choose to prioritize relief for those most immediately or severely affected by a crisis (here, prisoners whose appeals were final during the pandemic emergency) while excluding others, so long as legitimate reasons support the distinction.

This logic could apply, for example, to:

• Moratoria tied to natural disasters or systemic failures in legal representation;
• Phased rollouts of reforms, such as retroactive sentencing changes; or
• Agreements to delay certain enforcement actions to clear backlogs or implement new protective procedures.

D. Interaction with Pending Cases and State-Law Developments

The impact of Humphreys also depends on:

• The Georgia Supreme Court’s eventual decision in the appeal from the Federal Defender injunction, which will determine the long-term scope of the Agreement for Covered Inmates under state law.
• The Eleventh Circuit’s forthcoming opinion in Pace v. Commissioner, Georgia Department of Corrections, which may address standing or other constitutional theories in the same general area.

But as a practical matter, the Eleventh Circuit has already signaled in Humphreys that it views the Agreement’s temporal limitation as a permissible, rational policy compromise rather than an arbitrary or punitive distinction.

VIII. Conclusion

Humphreys v. Commissioner, Georgia Department of Corrections occupies an important niche at the intersection of capital punishment, pandemic-era policy, and constitutional law.

The decision:

• Confirms that a state’s selective extension of COVID-19 execution protections, limited to a class of prisoners whose appeals became final during the judicial emergency, does not violate equal protection under rational-basis review.
• Rejects the concept of a fundamental right to an incremental extension of life after a lawful, final death sentence.
• Reaffirms that procedural due process in clemency requires only minimal safeguards, not parity with every more favorable regime available to some prisoners.
• Clarifies that negotiated agreements with private defense organizations create classifications subject to equal protection scrutiny, but also that such classifications may be upheld as rational when narrowly tailored to crisis conditions.
• Reiterates the stringent standard for stays of execution pending appeal in § 1983 litigation, emphasizing that irreparable injury must be linked to a likely constitutional violation, not just to the fact of execution itself.

As a result, while the Agreement continues to protect Covered Inmates in Georgia, prisoners like Humphreys, whose cases became final after the judicial emergency, cannot successfully invoke the Constitution to demand the same delay in execution. The opinion thereby endorses a model in which states may respond to extraordinary circumstances—such as a pandemic—with targeted, negotiated safeguards for a defined subset of affected persons without being constitutionally required to extend identical protections to all similarly situated individuals across time.