A last-minute decision by federal appeals courts could still stop the killing
The state of Alabama is a day away from putting an intellectually disabled Black man to death, even though he has a trial scheduled for next June challenging his execution process as a denial of federal disability rights.
At 6pm Eastern Time on 21 October, barring any last-minute orders from a federal appeals court or the US Supreme Court, Alabama will kill Willie Smith by legal injection, a man with an IQ in the 70s who was convicted for the 1991 abduction and killing of Sharm Ruth Johnson in Birmingham.
Willie Smith, unlike other high-profile death row inmates like Julius Jones, is not arguing for his innocence.
Instead, a team of federal public defenders representing Smith claims he wasn’t given legally mandated disability accommodations under the Americans with Disabilities Act (ADA) to fill out a 2018 form designating his preferred method of execution. Prisoners were given only a few days in June of that year to select their procedure. Smith, who has been measured with the mathematic and reading skills of a child, didn’t have proper time to review the form with his attorneys and decide on a course of action, he claims in lawsuit dating back to 2019 Under federal law, government actors are required to provide accommodations for those in their care known to have disabilities. Now, the public defenders have filed an emergency request in federal appeals court to stop the killing, arguing the man should be given time for the case to proceed.
“The fact that the Department of Corrections did not provide him an accommodation, and is now actively fighting him about this accommodation is disturbing,” John Palombi, a member of Smith’s legal team, told The Independent. “Even more disturbing is that despite the fact that this case has been pending since November 2019, was actively in the discovery phase of proceedings, and is scheduled for a trial on Mr Smith’s claims in June 2022, the State has chosen to attempt to execute him now, while his meritorious lawsuit is pending.”
State authorities, meanwhile, say the case has been thoroughly litigated already, and that Smith never requested an accommodation or an alternative form of execution. A lower court has previously tossed Smith’s ADA claims, and Alabama argues that Smith had ample chance to seek an accommodation, but that the facts in this case mean officials weren’t required to give one.
“The evidence is undisputed that Smith had access to the people best situated to help him think through the decision: his attorneys,” Alabama Attorney Genera Steve Marshall wrote in a brief on Wednesday. “The ADOC [Alabama Department of Corrections] was not required to provide him an ‘accommodation’ to place him in a better position than other inmates on death row.”
The Independent has reached out to the Attorney General and Governor of Alabama for comment.
The last minute arguments before the federal Eleventh Circuit of Appeals are the latest twist in the case that has probed multiple aspects of the execution process. Smith’s execution was originally set for February of this year, but was halted after the US Supreme Court ruled he had a right to have his pastor join him in the execution chamber and pray over him during the killing. (Alabama authorities had previously denied his requests for the presence of a spiritual adviser inside the room.)
It’s not the first time the state could execute someone before they get their full day in court. In 2017, during ongoing litigation against the state’s lethal injection protocol, the US Supreme Court allowed Alabama to move forward with the executions of Robert Melson and Torrey McNabb, despite both men having previously secured stays in lower court.
Alabama is known for its prolific use of capital punishment, and has executed 67 people since the modern era of the death penalty began in the mid-1970s, the seventh highest total in the US. The state also has a high error rate in executions, with one person being exonerated for every seven who are executed, according to the Equal Justice Initiative.
Smith, who grew up in dire poverty with an abusive father, couldn’t afford a lawyer, and one of his court-appointed counsel was disbarred, while another was handling her first trial during the penalty phase of his death penalty case. His 1992 death sentence was not unanimous, but unlike most states, Alabama allows non-unanimous death verdicts.
In 2012, a state court ruled that despite his low IQ, Smith didn’t have an intellectual disability, using a methodology later struck down by the US Supreme Court in 2017.
A court later wrote, fittingly, that Smith’s execution on those now-disproven grounds was “a matter of timing.”
The Independent and the nonprofit Responsible Business Initiative for Justice (RBIJ) have launched a joint campaign calling for an end to the death penalty in the US. The RBIJ has attracted more than 150 well-known signatories to their Business Leaders Declaration Against the Death Penalty – with The Independent as the latest on the list. We join high-profile executives like Ariana Huffington, Facebook’s Sheryl Sandberg, and Virgin Group founder Sir Richard Branson as part of this initiative and are making a pledge to highlight the injustices of the death penalty in our coverage.