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Court won’t allow Alabama execution without a pastor

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The Supreme Court on Thursday night ruled that the execution of an Alabama man must remain on hold unless the state allows the man, Willie Smith III, to have his pastor by his side in the execution chamber. The justices rejected a request by the state to undo a ruling by the U.S. Court of Appeals for the 11th Circuit, which had blocked the state from executing Smith.

The justices also lifted a stay of execution entered by the 11th Circuit in a separate proceeding, clearing the way for the state to execute Smith if it agrees to allow him to be accompanied by his pastor in the execution chamber. However, the Associated Press reported shortly after the Supreme Court’s ruling that Alabama had called off Smith’s execution, which had been scheduled to take place under an execution warrant that designated Thursday as the execution date. The Supreme Court issued its ruling at around midnight eastern time – or about 11 p.m. central time, just one hour before the execution warrant expired.

Smith, 51, was sentenced to death for the 1991 robbery and shooting death of 22-year-old Sharma Johnson in Birmingham, Alabama.

Four justices — Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan and Amy Coney Barrett — all signed an opinion, written by Kagan, that said the state failed to adequately justify its policy of barring spiritual advisers from the execution chamber. Three justices — Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh — indicated that they would have allowed the execution to go forward under Alabama’s policy. The remaining two justices – Justices Samuel Alito and Neil Gorsuch – did not publicly disclose how they voted, but at least one of them must have voted with the three liberal justices and Barrett to prevent the execution from occurring without a spiritual adviser.

Until 2019, Alabama’s Department of Corrections allowed a Christian chaplain employed by the state to be in the execution chamber during lethal injections, but it did not allow outside spiritual advisers. It changed that policy and barred all spiritual advisers from the execution chamber in response to a March 2019 ruling from the Supreme Court in an emergency death-penalty appeal known as Murphy v. Collier. In that case, a Buddhist inmate challenged Texas’ policy of allowing Christian and Muslim spiritual advisers in the execution chamber while excluding clergy representing other religions, arguing that the policy discriminated against him. The court put the Buddhist inmate’s execution on hold, and Kavanaugh wrote a separate opinion suggesting that one solution would be for the state to bar all spiritual advisers from the execution chamber. Both Texas and Alabama adopted that policy.

Smith went to federal court to challenge the state’s new policy, arguing that the total ban on spiritual advisers in the chamber violates both the Constitution’s guarantee of free exercise of religion and a federal law that protects inmates’ religious rights. On Wednesday, the 11th Circuit sided with Smith and blocked the state from executing him unless it allowed his personal spiritual adviser, a Christian pastor, to join him in the chamber.

The state asked the Supreme Court to intervene on Thursday morning. It stressed that although inmates have their spiritual advisers with them until they go into the chamber, and can see them in the viewing room, the ability to exclude everyone except corrections officials from the execution chamber is essential to “preserving the security and solemnity of the execution.” And in any event, the state added, Smith’s challenge came too late – nearly two years after the state changed its policy.

Smith urged the justices to leave the 11th Circuit’s ruling in place. He dismissed the state’s concerns about security as overblown, pointing to a series of recent executions conducted by the federal Bureau of Prisons in which inmates were permitted to have their personal spiritual advisers with them in the execution chamber without incident. Smith also pushed back against the state’s suggestion that his challenge was untimely, noting that it was filed “nearly 60 days” before his scheduled execution, much earlier than the case of the Buddhist inmate whose execution the Supreme Court stayed in 2019.

The state needed five votes to lift the 11th Circuit’s ruling and allow the execution to proceed without Smith’s pastor in the execution chamber.

Thomas indicated, without saying anything more, that he would have granted the state’s request. Roberts and Kavanaugh also would have allowed the execution to go ahead without Smith’s pastor in the chamber. In a short opinion dissenting from the denial of the state’s request, Kavanaugh (joined by Roberts) explained that, in his view, the state’s policy of excluding all spiritual advisers from the chamber “serves the State’s compelling interests in ensuring the safety, security, and solemnity of the execution room.” But in light of the court’s ruling in Smith’s case and in a similar case out of Texas, Kavanaugh reasoned, states should likely “figure out a way to allow spiritual into the execution room, as other States and the Federal Government have done.”

Kagan wrote an opinion concurring in the decision to keep the 11th Circuit’s ruling on the spiritual adviser in place. Breyer, Sotomayor, and the court’s newest justice, Amy Coney Barrett, joined that opinion. Kagan explained that any restrictions on Smith’s religious rights must satisfy a stringent test – which, she concluded, Alabama’s policy cannot. Kagan acknowledged that prison security is a compelling interest, but she emphasized that the federal government and some states have allowed clergy members without a connection to the government to attend executions without resulting in any security concerns. The state can “take any number of measures to ensure that a clergy member will act responsibly during an execution,” she suggested, including background checks or requiring a pledge of good behavior. But it cannot “simply presume that every clergy member will be untrustworthy — or otherwise said, that only the harshest restriction can work.”

Alito and Gorsuch did not indicate how they had voted, but the public votes of the other seven justices (with four concurring in the decision to keep the 11th Circuit’s ruling in place and three dissenting) indicate that either Alito or Gorsuch (or both) voted to keep the lower court’s ruling in place. If both had voted to lift the lower court’s ruling, there would have been five votes to do so.

In a separate order, the justices lifted a temporary stay of execution that the 11th Circuit had entered on Wednesday to give it more time to consider Smith’s claim that, because he is intellectually disabled, the state should have provided him with help in reviewing a document that would have allowed him to choose an alternate method of execution.

The state had urged the justices to revoke the stay, telling them that – like Smith’s spiritual-adviser claim – it had been filed too late. Moreover, the state added, Smith had not shown that the state was aware of his intellectual disability or that he needed help to complete the form, which would have allowed him to opt to be executed by lethal nitrogen rather than through a controversial three-drug lethal injection protocol.

Smith’s attorneys, who told the justices that Smith’s IQ is between 64 and 75, asserted that corrections officials have long known that he is intellectually impaired and therefore should have provided him with assistance to understand and complete “a highly complex and complicated form” to choose execution by lethal nitrogen. When officials failed to do so, Smith’s attorneys argued, he was denied an opportunity to opt out of a protocol “that has continuously been challenged as causing pain and suffering.”

This article was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Court won’t allow Alabama execution without a pastor, SCOTUSblog (Feb. 12, 2021, 2:35 AM),