Friday, February 12, 2021

Supreme Court Allows Execution Only If Clergy of Choice Allowed In Execution Chamber

As reported by SCOTUSblog, in a jigsaw puzzle-like set of opinions and orders the U.S. Supreme Court last night just before midnight Eastern Time allowed Alabama to move ahead with the execution of convicted murderer Willie Smith-- but only if the state allowed him to have the Pastor of his choice with him in the execution chamber. In Dunn v. Smith, (US Sup. Ct., Feb. 11, 2021), a majority of the Court refused to lift an injunction issued the day before by the 11th Circuit (see prior posting) holding that Alabama's exclusion of all clergy from the execution chamber violates RLUIPA. The order refusing to vacate the 11th Circuit's injunction was unsigned. However Justice Kagan wrote a concurring opinion, joined by Justices Breyer, Sotomayor and Barrett, saying that RLUIPA "sets a high bar for Alabama to clear." They added:

Prison security is, of course, a compelling state interest. But past practice, in Alabama and elsewhere, shows that a prison may ensure security without barring all clergy members from the execution chamber. Until two years ago, Alabama required the presence of a prison chaplain at an inmate’s side. (It gave up the practice only when this Court barred States from providing spiritual advisors of just one faith.) Still more relevant, other jurisdictions have allowed clergy members with no connection to the government to attend an inmate’s execution.... , dissenting from denial of application to vacate injunction). Nowhere, as far as I can tell, has the presence of a clergy member (whether state-appointed or independent) disturbed an execution.

Justice Kavanaugh, in an opinion joined by Chief Justice Roberts, dissented, saying in part:

Because the State’s policy is non-discriminatory and, in my view, serves the State’s compelling interests in ensuring the safety, security, and solemnity of the execution room, I would have granted the State’s application to vacate the injunction.

Justice Thomas indicated (without joining the dissenting opinion) that he would have vacated the 11th Circuit's injunction.   Neither Justice Alito or Gorsuch indicated how they voted, but at least one of them would have had to agree with the 11th Circuit for the majority vote which the Court's unsigned Order commanded.

But this did not end the matter because there was also another outstanding stay of execution in the case which the 11th Circuit had granted on Feb. 10 in order to consider a different challenge to the execution. The Supreme Court yesterday vacated that stay (Order List) so that the execution, with the Pastor present, could move ahead.

As reported by SCOTUSblog, in the end the execution was not carried out because the execution warrant expired a midnight Central Time, only one hour after the Supreme Court orders were handed down.