Alabama’s Denial of Religious Support to Condemned Man Leads to Stay of Execution


The U.S. Supreme Court yesterday barred the State of Alabama from executing Willie Smith because it had refused to allow his pastor to be present with him in the execution chamber. 

An opinion from the Court stated that “Alabama has not carried its burden of showing that the exclusion of all clergy members from the execution chamber is necessary to ensure prison security.”

For decades, Alabama permitted a Christian chaplain to be in the execution chamber during executions, and there was never an incident with that policy. But when Domineque Ray, a devout Muslim, requested that an imam be present as his spiritual advisor during his February 2019 execution, the State refused. 

Mr. Ray challenged the policy and the Supreme Court allowed the execution to proceed. But Justice Elena Kagan wrote in dissent that barring a non-Christian inmate from having a minister of his own faith by his side during his execution “goes against the Establishment Clause’s core principle of denominational neutrality” and called the Court’s decision allowing the execution to go forward “profoundly wrong.”

In a similar case just two months later, the Supreme Court stayed the execution of a Buddhist inmate because Texas had denied his request for his spiritual adviser to be present in the execution chamber. Justice Brett Kavanaugh wrote that Texas’s policy was unconstitutional because it amounted to discrimination against particular religious denominations.

Alabama changed its policy regarding spiritual advisors after the Texas case. Rather than accommodate the religious practices of Muslim and other non-Christian prisoners, the State decided to ban all religious support during executions.

Prior to his scheduled execution, Mr. Smith asked that his pastor, Robert Paul Wiley Jr., be allowed in the execution chamber with him, but the State of Alabama invoked its new policy and refused the request. Mr. Smith challenged that refusal, alleging that the policy violates his rights under the Religious Land Use and Institutionalized Person Act of 2000 (RLUIPA), which requires that a state cannot substantially burden the exercise of religion unless it has no alternative.

The Eleventh Circuit found earlier this week that Mr. Smith showed that the State’s policy “substantially burdens” the exercise of his religion. The State argued that the policy was necessary to maintain “safety, security, and solemnity during an execution,” but the court found that  alternatives could be used—like the federal Bureau of Prisons’s policy of allowing the spiritual advisor of the prisoner’s choice to be present in the execution chamber after undergoing a background check. 

Because barring Pastor Wiley was not the “least restrictive means” for the State to achieve its security goals, the court granted an injunction requiring Alabama to permit Mr. Smith to have Pastor Wiley present in the execution chamber at the time of the execution. 

Rather than allow Mr. Smith access to his pastor after the Eleventh Circuit’s ruling, the State chose to appeal to the Supreme Court. The State argued it was entitled to deny Mr. Smith any religious support during his execution, but the Court agreed with Mr. Smith that “Alabama’s policy of barring all clergy members from the execution chamber, leaving inmates to die without spiritual attendance” substantially burdens his exercise of religion.

Alabama’s own decades-long practice of requiring the presence of a prison chaplain at an inmate’s side during all executions—and the practices of other jurisdictions that have allowed outside clergy members to attend executions—show “that a prison may ensure security without barring all clergy members from the execution chamber,” Justice Kagan wrote.

Indeed, as Justice Kagan noted, the federal government has conducted more than 10 executions in the past year attended by the prisoner’s clergy of choice and some states have followed the same policy without incident. “Nowhere, as far as I can tell, has the presence of a clergy member (whether state-appointed or independent) disturbed an execution,” she wrote.

Alabama can take measures to ensure that a clergy member will act responsibly, including doing background checks and interviewing the minister in advance. “What the State cannot do,” Justice Kagan wrote, “is simply presume that every clergy member will be untrustworthy.”

“The law guarantees Smith the right to practice his faith free from unnecessary interference, including at the moment the State puts him to death,” Justice Kagan concluded.

The State of Alabama has barred all incarcerated people from receiving any visits from family or legal counsel for the past year due to the Covid-19 pandemic. And the State’s execution protocols limited family and legal visits with Mr. Smith in the days and weeks leading up to his execution, which made their refusal to allow him the comfort of having his pastor with him during his execution especially distressing.