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.]


Mitchell Atencio, HE WANTS HIS PASTOR WITH HIM AT HIS EXECUTION. ALABAMA WON’T ALLOW IT, Sojourners, February 5, 2021; Daniel Conrad, Imam Sues Alabama for Not Letting Him Join Muslim Inmates in Execution Room, Courthouse News, February 42021

Read the Eleventh Circuit’s injunc­tion order in Smith v. Commissioner here. Read the com­plaint filed in Maisonet v. Dunn here.