On February 11, 2021, for the first time in nearly a year, the U.S. Supreme Court upheld a stay of execution issued to a prisoner slated for lethal injection that same night. Willie B. Smith, a Christian, appealed a district court’s denial of his right to have his pastor accompany him into the execution chamber at the time of his execution. The Eleventh Circuit Court of Appeals reversed the district court’s denial of injunctive relief, rejecting the prison’s claim that because the pastor was not an employee at the facility, he could not be permitted to remain with Mr. Smith during his execution out of concerns for prison security.
The Court’s decision to uphold the injunction and refuse Alabama’s application for a vacatur of the stay is the first time it has left a lower court stay in place since after it allowed thirteen federal executions to proceed between July 2020 and January 2021. Smith’s appeal to the Eleventh Circuit asked whether a death-row prisoner has a First Amendment or statutory right to have his religious advisor present inside the execution chamber during the execution. The Court of Appeals reversed the district court on the grounds that it had abused its discretion in finding that Smith failed to demonstrate that his religious exercise was substantially burdened by the prison’s decision to exclude his spiritual adviser from the execution chamber. While the Eleventh Circuit agreed with the district court that the “ADOC [Alabama Department of Corrections] has a compelling interest in maintaining security,” it asserted that the ADOC’s policy of excluding all spiritual advisers from the chamber was not the least restrictive means to further that compelling interest.
U.S. Supreme Court Associate Justice Clarence Thomas, the justice assigned to the Eleventh Circuit, referred the matter to the Court upon receiving Alabama’s emergency application for vacatur of the Circuit’s stay. Justice Kagan wrote a concurrence in denying the State’s motion for vacatur that garnered the support of fellow Justices Sonia Sotomayor, Stephen G. Breyer, and Amy Coney Barrett. Although the order did not specify how Justices Neil Gorsuch and Samuel Alito voted, Justice Kavanaugh authored a dissent, which Chief Justice John Roberts joined. Justice Thomas indicated that he would have granted the State’s application to vacate the injunction but does not provide written reasoning as to why.
Had Smith’s execution proceeded as planned, Alabama would have been the first state to carry out an execution in 2021. Smith was convicted of the 1991 robbery, kidnapping, and murder of Sharma Ruth Johnson in Birmingham in 1992, and a jury voted 10-to-2 to recommend a death sentence. (Previously, Alabama permitted jury overrides in capital sentencing, but no longer does so. However, the U.S. Supreme Court has allowed 10-to-2 decisions to stand, and meanwhile, Alabama continues its practice of nonunanimous jury recommendations for death.)
Justice Kagan’s Concurrence in Smith
In her concurrence upholding the injunction issued by the Eleventh Circuit, Justice Kagan explained that the Religious Land Use and Institutionalized Persons Act (RLUIPA), a statute meant to safeguard prisoners’ religious rights, “sets a high bar for Alabama to clear” since it provides “expansive protection” for the religious liberty of prisoners. Under RLUIPA, the government must survive strict-scrutiny review to show that the limitations it is placing on religious exercise are appropriate. Justice Kagan asserted that Alabama did not meet this burden in its decision to exclude all clergy members from the execution chamber, nor did she find that prison security was necessarily ensured by taking such action. She wrote:
Under [RLUIPA], a prison may not “impose a substantial burden” on a prisoner’s “religious exercise” unless doing so satisfies our strict-scrutiny test.” The challenged policy must be “the least restrictive means of furthering [a] compelling governmental interest.” 42 U. S. C. §2000cc–1(a). That standard, we have often explained, is “exceptionally demanding.” Holt, 574 U. S., at 364. If any “less restrictive means is available for the Government to achieve its goals, then the Government must use it.”
Smith contended that his spiritual advisor’s presence at his execution entails a critical exercise of his faith. In his complaint, Smith’s lawyers explained that, by praying with him and providing him with spiritual comfort at the time of his execution, Pastor Wiley, Jr. would help ease Smith’s “transition from life to death.” Justice Kagan stated that Alabama’s recent policy of prohibiting all clergy members from the execution chamber substantially burdened Smith’s exercise of religion by leaving him to die without spiritual attendance. “Smith understands his minister’s presence as ‘integral to [his] faith’ and ‘essential to [his] spiritual search for redemption,’” she wrote. Justice Kagan concluded, “Alabama can take any number of measures to ensure that a clergy member will act responsibly during an execution,” and “[t]he law guarantees Smith the right to practice his faith free from unnecessary interference, including at the moment the State puts him to death.”
Dissenting, Justice Kavanaugh argued that the State’s policy is non-discriminatory by barring religious advisers of all faiths and serves the compelling interests that the State has identified in ensuring the safety, security, and solemnity of the execution room. Justice Kavanaugh stated that he would have granted the State’s application to vacate the injunction. Given Smith’s stay of execution, however, and in light of the Court’s issuance of a stay in Gutierrez v. Saenz, 590 U. S. ___ (2020), a case raising a similar issue, Justice Kavanaugh reasoned that states seeking to avoid lengthy litigation delays under RLUIPA should simply “figure out a way to allow spiritual advisors into the execution room, as other States and the Federal Government have done.” By doing so, said Justice Kavanaugh, states could satisfy the religious requests of prisoners and bring closure to victims’ families by allowing the executions to be carried out as scheduled.
Recent Controversy Over Religious Exercise at the Time of Execution
Smith’s case comes after Domineque Hakim Ray and Patrick Henry Murphy challenged their scheduled executions in a series of disputes over the presence of spiritual advisers in execution chambers. Ray, a Muslim, was executed in Alabama in 2019 without his imam present, following a 5-to-4 vote by the U.S. Supreme Court to overturn a rare stay of execution granted to Ray by the Eleventh Circuit. The same legal question in Ray and Murphy’s cases lies at the heart of the Smith case: whether capital defendants have a right, either statutory or constitutional, to the presence of their spiritual advisors in the execution chamber at the time of their deaths.
At the time of Ray’s execution, the ADOC maintained a policy of only allowing those spiritual advisers employed by the prison to accompany the prisoner into the execution chamber. At that time, however, ADOC only maintained a Christian and a Jewish chaplain on staff, meaning that only Christian and Jewish death row prisoners would be entitled to this spiritual accompaniment if requested. The Eleventh Circuit found that this practice flatly violated the Establishment Clause of the First Amendment, by only providing the right to spiritual guidance at the time of death to death row prisoners of certain faiths. The Eleventh Circuit panel wrote, “The claim presented by Domineque Ray touches at the heart of the Establishment Clause. Indeed, we can think of no principle more elemental to the Establishment Clause than that the states and the federal government shall not favor one religious denomination over another.”
In vacating the Circuit stay, the U.S. Supreme Court majority did not address this grave constitutional question and only stated that it granted the State’s application for vacatur on the grounds that Ray had waited too long to raise the claim. Justice Kagan, writing for the four dissenters, called the Court’s decision “profoundly wrong”—both in failing to address the underlying constitutional merits of the claim recognized by the Eleventh Circuit, and also in its conclusion that the claim had been brought too late to merit resolution.
Subsequent to the controversy generated by Ray’s case, ADOC modified its policy to prohibit all spiritual advisers from accompanying the condemned prisoner at the time of death. This change by the ADOC was meant to prevent any claims of unequal treatment between prisoners of different faiths, but was the policy that led to the objection raised by Smith earlier this spring.
Two months after Ray was executed, the Court voted 7-to-2 to grant Murphy, a Buddhist prisoner in Texas, a stay of execution following his claim that Texas’s refusal to allow his Buddhist minister to accompany him at the time of his death violated his constitutional rights. Similar to Alabama’s policy at the time of Ray’s execution, Texas allowed for a religious adviser to be present at the time of execution, but interpreted a “religious advisor” to refer only to a spiritual guide employed by the Texas Department of Criminal Justice (TDCJ). In Murphy v. Collier, Justice Kavanaugh wrote that “[t]he government may not discriminate against religion generally or against particular religious denominations,” and thus Texas’s policy that did not allow for religious advisers of faiths other than those employed by the prison amounted to unconstitutional religious discrimination. Although the Supreme Court attributed the difference in the resolution of Ray and Murphy’s cases to Ray’s purported delay in seeking relief, there has been speculation that the discrepancy is more likely attributable to the considerable pushback the Court received after allowing Ray’s execution to proceed.
In April 2019, in response to the execution litigation initiated by Ray, the ADOC amended its execution protocol to forbid all spiritual advisers from being present with condemned prisoners at the time of their execution. Texas attempted the same after the stay granted in Murphy, leading to the stay granted to Ruben Gutierrez, who was to be executed under this new policy banning religious accompaniments of all sorts. In light of the stay granted to Smith, the ADOC is once again amending its lethal injection protocol, allowing a condemned prisoner the presence of the spiritual advisor of their choice in the execution chamber. Alabama, however, continues to insist that “the ADOC policy restricting access to the execution chamber to trained, vetted, and trusted ADOC employees is not violative of RLUIPA, ARFA, or the First Amendment.”
In an amicus brief on behalf of Smith, the Becket Fund for Religious Liberty asserted that “[t]he federal government and multiple states have provided spiritual advisers to prisoners in many executions, including in 13 of the 20 executions carried out nationwide since 2020. Their practices show that what [Willie] Smith requests can be done.”