The morning after Willie Smith was not executed by the state of Alabama, his attorney Spencer Hahn shared a video he said encapsulated his reaction to learning that the U.S. Supreme Court had upheld the stay of execution. It stars Bob Odenkirk as a salesman so terrible he has never closed a deal, competing against his fellow salesmen for a steak dinner.
At the end of the video, having made his first major sale, Odenkirk is presented with the dinner – the same exact meal that was proffered at the start of the competition, now teeming with flies. He delicately spears a fly with his fork and bites, savoring the moment. “That’s some good fly.”
Hahn was the lead federal defender on Willie Smith’s end-stage litigation. It was multi-pronged attack including claims about Mr. Smith’s cognitive impairment, the danger of moving forward with killing him amid evidence that recent federal executions had acted as COVID superspreaders, and the assertion that the state of Alabama would violate his right to freely exercise his religion if it did not allow him to pray with his spiritual advisor while executioners killed him.
With less than an hour to go before Mr. Smith’s death warrant expired at midnight on Feb. 11, the U.S. Supreme Court upheld an injunction issued by the Eleventh Circuit the day before, based on the religious freedom challenge.
The Court found that the state of Alabama had not proven that its policy of excluding all spiritual advisors from the death chamber was the “least restrictive means” of accommodating Mr. Smith’s rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), which requires states to broadly accommodate prisoners’ religious practices under most circumstances. The decision – which only temporarily saved Mr. Smith’s life and at best lays the groundwork for the possibility that he will be allowed to pray with his pastor by his side as he is killed – was almost exactly two years in the making.
For as long as anyone can remember, every person who has been executed in Alabama has been Christian. That changed in February 2019, when Alabama took the life of a man named Domineque Hakim Marcelle Ray. Mr. Ray was a devout Muslim, and he asked to be attended by Yusef Maisonet, a Mobile-based imam who ministers to Muslim inmates at Holman Correctional Facility, home of Alabama’s death row.
At the time Mr. Ray’s death warrant was issued, Alabama’s execution protocol required a chaplain in the execution chamber. Chris Summers, a Protestant chaplain employed by the Alabama Department of Corrections, had ushered every condemned inmate out of life for decades.
The state denied Mr. Ray’s request to have Imam Maisonet pray with him as he died. First, it said Chaplain Summers had to be in the death chamber. Then it said Chaplain Summers’ presence wasn’t required, but Imam Maisonet could not be there because – despite having been cleared for contact visits with condemned inmates for years – he presented a security risk. A federal appeals court stayed the execution, but the U.S. Supreme Court overturned it. Mr. Ray died unattended, silently mouthing the words of the Shahadah, a prayer Muslims are encouraged to speak as death approaches.
Within days of Mr. Ray’s execution, conservative religious liberty advocates were writing, blogging, tweeting, and speaking about the particular cruelty of the court’s decision to allow him to be killed without his imam there. Less than two months later, the Supreme Court did an about-face in the very similar case of Patrick Henry Murphy, a Buddhist Texas inmate who requested to have his spiritual advisor in the death chamber with him despite Texas’ policy of only allowing a state-employed Christian or Muslim chaplain in the room. Writing a concurrence for the majority, Justice Brett Kavanaugh said states needed to either “(1) allow all inmates to have a religious adviser of their religion in the execution room; or (2) allow inmates to have a religious adviser, including any state-employed chaplain, only in the viewing room, not the execution room.”
Alabama went with door number two, changing its execution protocol to exclude chaplains from all executions. Rather than accommodate the needs of a religious minority, this state, which has repeatedly elected bible-thumping lawmakers who say religious liberty is their top or even exclusive priority, decided to deny all condemned prisoners the comfort and guidance of a pastor at the time of their death. It was a classic Alabama move: In 1959, after a federal judge ordered the city of Montgomery to integrate its public recreation facilities, the city instead closed them all, filled the swimming pools with dirt, and sold or gave away all the animals in its zoo. To this day, there are no public swimming pools in Montgomery. Literally, this is why we can’t have nice things.
Following the Murphy ruling, other jurisdictions, including the federal government, crafted protocols that allowed religious advisors of any faith in the chamber as long as they passed security checks. The ease with which they did this formed the basis of Willie Smith’s 2020 petition to be allowed a chaplain of his choosing to pray with him as he dies. He argued that Alabama’s policy of barring all spiritual advisors from the death chamber ran afoul of the Religious Land Use and Institutionalized Persons Act by limiting his religious freedom without investigating less restrictive ways of accommodating his needs.
His petition, filed by volunteer counsel Anand Agneshwar from Arnold & Porter and the lawyers with the Federal Defender for the Middle District of Alabama, drew support from blue-chip conservative religious liberty firms including the Becket Fund for Religious Liberty and the Rutherford Institute. The U.S. Supreme Court’s ruling in Mr. Smith’s case, in which three conservative justices joined the three-member liberal bloc to uphold the stay, was celebrated by everyone from the Southern Baptist Ethics and Religious Liberty Commission to the ACLU of Alabama.
Ultimately, this line of litigation will not save any prisoner from execution. But it does something else that is vanishingly rare in the realm of death penalty litigation – especially in Alabama, where the machinery of state-sanctioned murder is largely cheered on by the public despite the extraordinary work of Bryan Stevenson’s Equal Justice Initiative and the Federal Defenders’ Capital Habeas Unit. It acknowledges and centers the humanity and dignity of the condemned.
In recent years, one of the most contentious subjects of end-stage litigation has been the method of execution. The Eighth Amendment prohibits cruel and unusual punishment, and death penalty lawyers have argued that most currently employed methods risk being just that. In 2015, the U.S. Supreme Court ruled that if a prisoner wants to mount an Eighth Amendment challenge to the method of execution, they must tell the court the alternative way they wish to die instead. This line of litigation has delayed many deaths, but at a terrible cost, forcing men and women on death row and the lawyers who represent them to conduct ghoulish inquiries into the “best” way to take a life.
Other challenges to the death penalty are less macabre, commonly centering on challenges to a person’s eligibility to be killed either because they are intellectually disabled, cognitively impaired, or because their early lives were so horrific that they are deserving of mercy.
Each of these lines of argument can save lives more permanently. Each calls on the better angels of judges’ natures to err on the side of mercy rather than permit the execution of people whose moral culpability is diminished by organic or psychological factors. Each centers the humanity of the court.
The line of argument in Willie Smith’s is radically different. It won’t save any lives, but there is something profound about it nonetheless. The death penalty dehumanizes us all: the condemned; the legal teams who are forced to argue about how their clients should die; the judges who must split hairs about how much childhood trauma or cognitive impairment or intellectual disability is enough to warrant resentencing. In contrast, the justices’ decision to acknowledge Mr. Smith’s dignity centers his humanity – and demonstrates theirs. There is nothing more human than wanting to be with a person who knows and understands you and your spiritual beliefs during that final moment. The ruling won’t save Mr. Smith’s life, but in a system that is designed to erase every shred of dignity and humanity from the life it then extinguishes, it’s not nothing.
That’s some good fly.
Leah Nelson spent five years as a paralegal in the Middle District for Alabama Federal Defenders Capital Habeas Unit, which represents Mr. Smith. She is now Research Director at Alabama Appleseed. She lives in Montgomery.