The Death Penalty in the OSCE Area–Background Paper 2021 of her execution date.249 The COVID-related suspension of visits in prisons also impaired access of people on death row to legal representation, thus endangering their right to a fair trial.250 Suspending visits to prison also led to situations where, for example, Wesley Ira Purkey’s spiritual adviser, due to his health complications, was unable to support him ahead of his execution, after his request to postpone the execution was denied.251 Moreover, it has been established that lethal injections have a different impact on individuals who contracted COVID-19 due to the lung damage caused by the virus. Medical reports found that lung damage would exacerbate the feelings of a flash pulmonary edema and thus could amount to torture or other ill-treatment.252 Corey Johnson and Dustin Higgs, for example, were executed while suffering from COVID‑19.253 The United States Supreme Court denied Johnson’s request to delay his execution until after he had recovered.254 In the case of Dustin Higgs, the United States Supreme Court overturned a stay of execution enacted by the United States Court of Appeals for the Fourth Circuit.255 Justice Breyer and Justice Sotomayor filed dissenting opinions. Justice Breyer called into question the constitutionality of the death penalty. Justice Sotomayor supported the approach taken by the District Court, which noted that executing Dustin Higgs and Corey Johnson while they suffered from COVID-19 entailed the risk of “needless and significant pain” and an increased likelihood of “torturous effects.”256 249 DPIC, Lawyers for Lisa Montgomery Contract COVID-19 During Prison Visits, Seek Stay of Execution, 13 November 2020. 250 Amnesty International Global Report, 2020, op. cit., note 152, p. 20. 251 Ibid., p. 20, ACLU, The Federal Government’s Decision to Proceed with Executions During the Pandemic Puts Me in an Impossible Position, 2 July 2020 and ACLU Buddhist Priest Should not Have to Choose Between his Health and Performing Sacred Religious Duties For Prisoner Set to be Executed in July, 2 July 2020. 252 “Op-Ed: COVID, Capital Punishment, and Pentobarbital — Unquestionably cruel without lung infection, and even more egregious now”, Joel Zivot, 11 January 2021. 253 Michael Tarm and Denise Lavoie, CTV News, U.S. executes Virginia gang killer despite COVID-19 infection, 15 January 2021. 254 Equal Justice Initiative, Federal Executions Continue Despite Serious Questions of Fairness, 16 January 2021. Breyer joining Sotomayor and Kagan in noting a dissent: SCOTUS blog, Court allows execution of Corey Johnson to proceed after COVID-19 diagnosis, 14 January 2021. 255 “Justice Sotomayor’s 10-page dissent not only called attention to the unusual procedural tool the Court employed to overturn the stay of execution in Mr. Higgs’ case — a writ of certiorari before judgment — but also summarized many of the major claims and open legal questions the Court failed to address in the prior federal execution cases.” American Bar Association “The Project Blog”, Justice Sotomayor’s Dissent in United States v. Higgs Rebukes Supreme Court Practices During Federal Execution Spree, 8 February 2021. 256 Besides addressing the methods of execution used, J. Sotomayor also noted procedural issues and the lack of consideration the presence of intellectual disabilities, which were not taken into consideration. To read the full dissenting opinion, see: United States v. Dustin John Higgs, 592 United States Supreme Court (2021). 58