On Feb. 11, the state of Alabama intends to execute Willie B. Smith III without his pastor by his side — which Smith alleges is a violation of his religious freedom.
Smith has requested that Pastor Robert Wiley Jr., his friend and spiritual adviser, be able to pray with him and hold his hand up until his death. Currently, Alabama’s protocol does not allow for any religious figures to be present in the execution chamber and instead relegates them to the viewing room. The case is currently before the U.S. Court of Appeals for the Eleventh Circuit, where Smith’s representation is arguing that this is a prohibition of his religious rights.
“Regardless of what you think about the death penalty, at least allow somebody to have their pastor present when the state is executing them,” said Anand Agneshwar of Arnold & Porter law firm, which has taken up the case pro bono. “It seems like a basic, human request.”
According to Smith’s lawyers, Alabama’s Department of Corrections had a chaplain employed by the department present at all executions from 1997 through 2019. But after the Supreme Court determined in 2019 that Texas’ decision to bar a Buddhist spiritual adviser to accompany a man during his execution was religious discrimination, Texas and Alabama changed their policies. Rather than allow chaplains and advisers of any faith in an execution chamber, both states decided to allow none.
“Smith’s faith teaches him that the point of transition between life and death is important and that Pastor Wiley can provide spiritual guidance during this difficult time,” a declaration by Spencer Hahn, Smith’s public defender, reads.
Wiley, who pastors A Light in the City Ministry in Birmingham, Ala., has a “strong spiritual relationship and brotherly bond” with Smith, according to an affidavit Wiley submitted to the court.
“We speak on the phone at least once or twice a week, sometimes more, and we discuss Bible passages and issues of faith and redemption,” Wiley’s statement reads. “[A]s part of the body of Christ, we all must comfort one another, and there is no greater time to need that comfort than when dealing with the loss of loved one or facing loss of your own life.”
Despite mandating a chaplain employed by the department to be present for more than 35 previous executions, ADOC claims that it would create a safety risk to allow Wiley in the execution chamber. Texas and Alabama both claim that having a “free world” minister (that is, a minister who is not an employee of the states) would present a security risk — though neither state has explained exactly what those security risks are.
Smith’s lawsuit alleges that this is a violation of his First Amendment rights, along with his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA).
When Ruben Gutierrez filed a similar lawsuit against Texas in 2019, the U.S. Supreme Court granted Gutierrez a stay of execution in June 2020 and asked a district court to consider the security concerns. In January 2021, after the district court found that “no serious security problems would result” if a free world minister or adviser were present, SCOTUS asked the lower courts to reconsider the Gutierrez case.
Currently, Smith’s case is before the U.S. Court of Appeals for the Eleventh Circuit, and both sides filed briefs before the court on Friday. Earlier this month, Smith's attorneys requested Smith's execution be delayed due to the pandemic, but the Alabama Supreme Court denied the motion. With Smith’s execution still set for next Thursday, Agneshwar said they expect the court to make a ruling Tuesday or Wednesday, after which the losing side is likely to appeal to the Supreme Court.
Editor's note: This article was updated on Feb. 5 at 4:45 p.m. to correct the name of Arnold & Porter law firm.