Supreme Court Lets Stand Federal Appeals Court Injunction Halting Alabama Execution on Claim of Religious Discrimination

Four hours after Alabama was sched­uled to exe­cute death-row pris­on­er Willie B. Smith III on February 11, 2021, the U.S. Supreme Court let stand a fed­er­al appeals court injunc­tion bar­ring the exe­cu­tion from going for­ward unless the state per­mit­ted Smith’s pas­tor to be present to pro­vide him reli­gious com­fort in the exe­cu­tion cham­ber. Alabama then announced that it was call­ing off the execution. 

The U.S. Court of Appeals for the Eleventh Circuit had issued the pre­lim­i­nary injunc­tion late in the day on February 10, plac­ing Smith’s sched­uled February 11, 2021 exe­cu­tion in doubt. The Supreme Court’s order came amidst renewed charges of reli­gious dis­crim­i­na­tion in the state’s execution practices.

Smith, whom the appeals court had pre­vi­ous­ly found to be intel­lec­tu­al­ly dis­abled under clin­i­cal­ly accept­ed diag­nos­tic cri­te­ria that it declined to apply to his case, was sen­tenced to death in 1991 fol­low­ing a non-unan­i­mous sen­tenc­ing vote by his jury. He had asked Alabama to allow his spir­i­tu­al advi­sor, Pastor Robert Paul Wiley Jr., to pro­vide him reli­gious com­fort in the exe­cu­tion cham­ber and, when the state refused, his lawyers filed a civ­il rights suit in fed­er­al court chal­leng­ing the state’s action. That suit, filed on December 14, 2020, alleged that Alabama’s refusal vio­lat­ed the fed­er­al Religious Land Use and Institutionalized Person Act of 2000 (RLUIPA), the Religious Freedom Amendment to the Alabama con­sti­tu­tion, and the Establishment and Free Exercise claus­es of the First Amendment to the U.S. Constitution. The dis­trict court dis­missed his suit and he appealed to the Eleventh Circuit.

In a 2 – 1 deci­sion, the appeals court ruled that Smith had shown that he was like­ly to suc­ceed on his RLUIPA claim. The major­i­ty wrote that Smith was ​“a devout Christian who has a close, spir­i­tu­al con­nec­tion with Pastor Wiley … and his belief that Pastor Wiley’s pres­ence will pro­vide him com­fort dur­ing his exe­cu­tion.” It held that the dis­trict court had abused its dis­cre­tion ​“by find­ing Smith failed to demon­strate his reli­gious exer­cise was sub­stan­tial­ly bur­dened” by exclud­ing the pas­tor from the exe­cu­tion cham­ber and in find­ing that the Alabama Department of Correction (ADOC) pol­i­cy of exclud­ing all reli­gious advi­sors from the exe­cu­tion cham­ber was ​“the least restric­tive means to fur­ther [its] com­pelling inter­est” in main­tain­ing secu­ri­ty dur­ing the execution. 

The ADOC has nev­er per­mit­ted an out­side spir­i­tu­al advi­sor in the exe­cu­tion cham­ber. However, pri­or to April 2019, it had required the prison’s Christian chap­lain to be present in the exe­cu­tion cham­ber during executions. 

The Eleventh Circuit had also grant­ed Smith a tem­po­rary stay of exe­cu­tion to pro­vide the court time to con­sid­er a sep­a­rate claim that Alabama had vio­lat­ed the Americans With Disabilities Act by fail­ing to make accom­mo­da­tions for his intel­lec­tu­al dis­abil­i­ty when it refused his untime­ly request to be exe­cut­ed by nitro­gen hypox­ia. Had he known to make that elec­tion, he would not have been sub­ject to the death war­rant that sched­uled his exe­cu­tion for February 11. The Supreme Court issued an order vacat­ing that stay of exe­cu­tion.

The Eleventh Circuit’s deci­sion comes in the wake of con­tin­u­ing charges that Alabama has engaged in reli­gious dis­crim­i­na­tion in its exe­cu­tion prac­tices. On February 4, 2021, Imam Yusef Maisonet filed a civ­il rights law­suit in fed­er­al dis­trict court alleg­ing that ADOC had dis­crim­i­nat­ed against Muslim death-row pris­on­ers Domineque Ray and Nathaniel Woods by refus­ing to per­mit Maisonet to attend to them in the exe­cu­tion cham­ber dur­ing their executions. 

When Ray was exe­cut­ed on February 7, 2019, Alabama’s exe­cu­tion pro­to­col man­dat­ed the pres­ence of the prison’s Christian chap­lain in the exe­cu­tion cham­ber to the exclu­sion of all oth­er faiths. Following a con­tro­ver­sial U.S. Supreme Court deci­sion per­mit­ting his exe­cu­tion to go for­ward, Alabama revised its exe­cu­tion pro­to­col to pro­hib­it any reli­gious advi­sor in the exe­cu­tion cham­ber. On March 5, 2020, Alabama applied this new pol­i­cy to deny Maisonet per­mis­sion to min­is­ter to Woods dur­ing his execution.

Maisonet’s suit alleges that the state’s ​“appar­ent pur­pose in adopt­ing [the new pol­i­cy] was to exclude non-Christian chap­lains … from the exe­cu­tion cham­ber,” in vio­la­tion of the Establishment and Free Exercise Clauses of the First Amendment and Alabama’s reli­gious freedom amendment.

At a press con­fer­ence dis­cussing Maisonet’s law­suit, Gadeir Abbas, one of the imam’s attor­neys, said Alabama has an oblig­a­tion ​“to treat peo­ple of all faiths equal­ly. In this case, for decades, the state of Alabama pro­vid­ed a Christian chap­lain to peo­ple that were being exe­cut­ed,” he said. ​“When it first arose that a Muslim, a per­son who was not Christian, was request­ing reli­gious sup­port in the exe­cu­tion cham­ber, the state of Alabama balked at it, they opposed it, and they lit­i­gat­ed it all the way to the Supreme Court.”

[UPDATED February 12, 2021 to include the U.S. Supreme Court’s orders in the case.]