STATE OF GEORGIA v. FEDERAL DEFENDER PROGRAM, INC.

During the COVID-19 pandemic, lawyers for death row inmates, including the Federal Defender Program, negotiated with the Attorney General's office over when the state would resume seeking execution orders. A deputy attorney general sent an email in April 2021 setting out conditions, including waiting until pandemic visitation and vaccine conditions were met plus six months' notice. When Cobb County set an execution date for Virgil Presnell in 2022 without that notice, the Federal Defender and Presnell sued for breach of contract and sought an injunction. The State argued it was immune from suit because there was no valid written contract, and even if there were, an injunction was unwarranted. The trial court disagreed on both points, and the Supreme Court of Georgia agreed with the trial court, holding the email exchange was a binding written contract that waived sovereign immunity and that the trial court properly balanced the equities in granting the injunction.

An email exchange between a deputy attorney general and capital defense lawyers, containing definite terms, an electronic signature, and consideration, constituted a valid written contract sufficient to waive the State's sovereign immunity, and the trial court did not abuse its discretion in granting an interlocutory injunction to enforce that agreement.

The ruling confirms that state officials can bind Georgia to enforceable agreements through email, even without a formal signed document, and that courts can hold the state to promises made during the pandemic about execution timing, affecting capital defense practice and government accountability more broadly.

Affirmed

1. The court explained that sovereign immunity, the constitutional protection shielding the state from lawsuits, can only be waived for breach of a written contract, so it first had to decide whether the email exchange counted as a written contract.
2. Reviewing Georgia contract law and the Georgia Uniform Electronic Transactions Act (GUETA), which lets electronic records satisfy writing and signature requirements, the court found the deputy attorney general's typed name in her email amounted to a valid electronic signature and that the state had implicitly agreed to conduct this negotiation electronically.
3. The court concluded the email contained all essential contract elements: parties able to contract (senior attorney general staff acting within their authority), consideration (the defense lawyers gave up pursuing a formal agreement or legislation in exchange for the state's promise), and clear terms identifying the parties and conditions.
4. Having found a valid contract waived sovereign immunity, the court then applied the four-factor balancing test for interlocutory injunctions, weighing irreparable harm, relative harm to each side, likelihood of success on the breach claim, and the public interest.
5. The court found the evidence supported the trial court's conclusions that the defense team would suffer irreparable harm without adequate notice to prepare a clemency case, that the state had not substantially complied with the agreement's conditions or notice requirement, and that enforcing the state's own promises served the public interest in reliable execution procedures.

• sovereign immunity
• death penalty execution
• email contract
• COVID-19 court delays
• injunction against execution