Intellectually Disabled Alabama Death-Row Prisoner Appeals Denial of Stay of Execution, Arguing Designation of Lethal Injection Violated Americans With Disabilities Act

An intel­lec­tu­al­ly dis­abled Alabama death-row pris­on­er has appealed a fed­er­al dis­trict court rul­ing that clears the way for his exe­cu­tion on October 21, 2021.

On October 17, a fed­er­al dis­trict court judge denied for a sec­ond time Willie B. Smith III​’s claim that putting him to death by lethal injec­tion vio­lates his rights under the Americans with Disabilities Act (ADA). Lawyers for Smith (pic­tured) on October 19, 2021 filed a motion in the U.S. Court of Appeals for the Eleventh Circuit to stay his sched­uled exe­cu­tion so he can appeal the dis­trict court’s deci­sion. Smith’s motion ​“seek[s] to pro­hib­it the State of Alabama from exe­cut­ing him in any man­ner oth­er than with nitrogen hypoxia.”

Judge Emily Marks’ over-the-week­end rul­ing on October 17, 2021, comes two days after the cir­cuit court reversed her pri­or hold­ing that Smith lacked stand­ing to file a claim under the ADA. A unan­i­mous pan­el of the appeals court vacat­ed that rul­ing on October 15, 2021 and direct­ed Marks to address Smith’s ADA claim on its merits.

Smith, who a fed­er­al appeals court agrees qual­i­fies as intel­lec­tu­al­ly dis­abled under accept­ed clin­i­cal def­i­n­i­tions of the dis­or­der, was con­vict­ed in 1992 for the mur­der of a woman he had robbed and abduct­ed at an ATM machine. His jury vot­ed 10 – 2 to rec­om­mend the death penal­ty and, despite the non-unan­i­mous sen­tenc­ing rec­om­men­da­tion, his tri­al judge imposed the death penal­ty. Three states — Alabama, Florida, and Delaware — per­mit­ted that prac­tice at the time, and Alabama is the only one that still allows it. 

Smith is sched­uled to be exe­cut­ed by lethal injec­tion, Alabama’s default method of exe­cu­tion, because he failed to fill out a form dis­trib­uted by Alabama Department of Corrections (ADOC) offi­cials in which he could have des­ig­nat­ed an alter­na­tive method of exe­cu­tion. Per state leg­is­la­tion enact­ed in 2018, Smith and oth­ers on death row had 30 days from June 1, 2018, to choose whether to be exe­cut­ed by lethal injec­tion or by exe­cu­tion nitro­gen hypox­ia. To opt for nitro­gen hypox­ia, pris­on­ers who received the form need­ed to sign, date, and return a pro­vid­ed form. According to the Montgomery Adviser, sev­er­al inmates received notice ​“a few days before the dead­line and described a scram­ble to con­tact attor­neys and under­stand the offer to them.” 

Smith received this form, but his legal team says he need­ed — and nev­er received — assis­tance to under­stand its con­tents and what to do with it. Smith’s lawyers say that his ​“sig­nif­i­cant cog­ni­tive defi­cien­cies” qual­i­fy him for the pro­tec­tion under the ADA and require Alabama to pro­vide him rea­son­able accom­mo­da­tions in des­ig­nat­ing a method of exe­cu­tion. Had those accom­mo­da­tions been made, his lawyers say he would have des­ig­nat­ed exe­cu­tion by nitrogen gas. 

Alabama has begun build­ing the phys­i­cal infra­struc­ture for nitro­gen hypox­ia exe­cu­tions, but does not yet have a pro­to­col in place to car­ry them out.

Smith’s Intellectual Disability Claim

The Americans With Disability Act lit­i­ga­tion is the lat­est in a string of con­tro­ver­sial devel­op­ments in Smith’s case. 

In 2002, in Atkins v. Virginia, the U.S. Supreme Court declared that the use of cap­i­tal pun­ish­ment against indi­vid­u­als with intel­lec­tu­al dis­abil­i­ty vio­lat­ed the Eighth Amendment’s pro­scrip­tion against cru­el and unusu­al pun­ish­ments. In July 2020, the U.S. Supreme Court declined to review Smith’s appeal from the Alabama state and fed­er­al courts’ denial of his Atkins claim. 

In reject­ing Smith’s claim, the Alabama courts assert­ed that he had not met his bur­den of prov­ing that his intel­lec­tu­al and adap­tive func­tion­ing were suf­fi­cient­ly impaired to qual­i­fy for an intel­lec­tu­al dis­abil­i­ty diag­no­sis. Alabama denied the intel­lec­tu­al func­tion­ing por­tion of his claim on the grounds that his IQ score, unad­just­ed for mea­sure­ment errors, was 72 — two IQ points above the state’s uncon­sti­tu­tion­al IQ cut­off of 70. It reject­ed his claim of adap­tive deficits by uncon­sti­tu­tion­al­ly focus­ing on his adap­tive skills and assert­ing that those skills out­weighed his deficits. In 2014, in Hall v. Florida, the U.S. Supreme Court explic­it­ly declared the use of IQ cut-off scores to be uncon­sti­tu­tion­al. Subsequently, in two sep­a­rate deci­sions in Moore v. Texas, the Court explic­it­ly stat­ed that the focus of the deter­mi­na­tion of adap­tive func­tion­ing is on the pres­ence or absence of deficits, not on whether there are countervailing strengths.

The U.S. Court of Appeals for the Eleventh Circuit agreed that Smith would be inel­i­gi­ble for exe­cu­tion had Alabama applied a con­sti­tu­tion­al­ly valid stan­dard for deter­min­ing intel­lec­tu­al dis­abil­i­ty. However, it per­mit­ted his exe­cu­tion to go for­ward on the grounds that Hall and Moore should be applied only to cas­es that had not yet been decid­ed on appeal at the time of the Supreme Court deci­sions. Whether Smith could be exe­cut­ed, the court ruled, was pure­ly ​“a mat­ter of tim­ing”: if he was tried after Hall and Moore had been decid­ed, he would not have been eli­gi­ble for the death penalty.

The Religious Freedom Claim

In December 2020, the Alabama Supreme Court sched­uled Smith’s exe­cu­tion by lethal injec­tion for February 11, 2021. After Alabama noti­fied Smith that it would not per­mit his spir­i­tu­al advis­er to min­is­ter to him in the exe­cu­tion cham­ber, Smith filed a fed­er­al law­suit alleg­ing that Alabama’s refusal vio­lat­ed his rights under the fed­er­al Religious Land Use and Institutionalized Persons 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.

On February 10, 2021, a three-judge pan­el of the Eleventh Circuit vot­ed 2 – 1 to enjoin Alabama from car­ry­ing out his exe­cu­tion, find­ing that Smith was like­ly to suc­ceed on his RLUIPA claim. Four hours after the exe­cu­tion was sched­uled to start, the U.S. Supreme Court vot­ed to leave the injunc­tion in place 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.

In June 2021, Alabama and Smith reached a set­tle­ment of the reli­gious exer­cise issue in which Smith’s pas­tor will be per­mit­ted to anoint Smith’s head with oil, pray with Smith, and hold his hand, as long as the pas­tor moves out of the way before the exe­cu­tion team per­forms its con­scious­ness check. The pas­tor will be required to remain in the death cham­ber until the exe­cu­tion is com­plet­ed and cur­tains to the wit­ness rooms are drawn.

The Americans With Disabilities Act Claim 

In November 2019, Smith filed a fed­er­al civ­il rights law­suit chal­leng­ing the con­sti­tu­tion­al­i­ty of his exe­cu­tion by lethal injec­tion and argu­ing that ADOC’s des­ig­na­tion of lethal injec­tion as his exe­cu­tion method vio­lat­ed his rights under the ADA. As his first 2021 exe­cu­tion date approached, the Eleventh Circuit on February 20 grant­ed Smith a tem­po­rary stay of exe­cu­tion to pro­vide the court time to con­sid­er his claim. On February 11, the U.S. Supreme Court vacat­ed that stay, but halt­ed the exe­cu­tion over his reli­gious exercise claim. 

Over the sum­mer, Smith asked for an injunc­tion to pre­vent his exe­cu­tion by any means oth­er than nitro­gen hypox­ia until his ADA claim could be resolved on its mer­its, set­ting the stage for the current litigation.

Limiting Witnesses to the Execution

Citing COVID con­cerns, Alabama has uni­lat­er­al­ly restrict­ed media access to the exe­cu­tion. While the state has allowed up to five media wit­ness­es in the past, it is per­mit­ting only one reporter to wit­ness Smith’s execution. 

Paige Windsor, the exec­u­tive edi­tor of the Montgomery Advertiser, said the paper ​“object[s] to any laws, pro­ce­dures or prac­tices that lim­it press cov­er­age of state busi­ness, par­tic­u­lar­ly when that busi­ness involves killing a human being in the public’s name. Reporting on all aspects of these pro­ceed­ings is how a free press ensures the public’s busi­ness is car­ried out as prescribed.”

DPIC Executive Director Robert Dunham told Associated Press that the media serves an ​“irre­place­able func­tion” as ​“the public’s wit­ness­es” to exe­cu­tions. ​“If an exe­cu­tion is not safe enough to be wit­nessed by the full com­ple­ment of reporters, the rem­e­dy is not to decrease account­abil­i­ty and increase secre­cy by exclud­ing media wit­ness­es who would oth­er­wise be per­mit­ted to attend,” Dunham said. ​“If an exe­cu­tion is not safe enough for wit­ness­es, it is not safe enough to go for­ward at all.”

ADOC also attempt­ed to deny Smith the six wit­ness­es he was enti­tled to have at the exe­cu­tion. ADOC’s lawyers sub­se­quent­ly informed the court that Smith’s wit­ness­es will be per­mit­ted to attend if they sign a waiv­er absolv­ing ADOC of lia­bil­i­ty if they contract COVID.