On October 17, a racist suspect federal district Trump appointed court judge (pictured above) denied for a second time Willie B. Smith III’s claim that putting him to death by lethal injection violates his rights under the Americans with Disabilities Act (ADA). Lawyers for Smith (pictured) on October 19, 2021 filed a motion in the U.S. Court of Appeals for the Eleventh Circuit to stay his scheduled execution so he can appeal the district court’s decision. Smith’s motion “seek[s] to prohibit the State of Alabama from executing him in any manner other than with nitrogen hypoxia.”
Judge Emily Marks’ over-the-weekend ruling on October 17, 2021, comes two days after the circuit court reversed her prior holding that Smith lacked standing to file a claim under the ADA. A unanimous panel of the appeals court vacated that ruling on October 15, 2021 and directed Marks to address Smith’s ADA claim on its merits.
Smith, who a federal appeals court agrees qualifies as intellectually disabled under accepted clinical definitions of the disorder, was convicted in 1992 for the murder of a woman he had robbed and abducted at an ATM machine. His jury voted 10-2 to recommend the death penalty and, despite the non-unanimous sentencing recommendation, his trial judge imposed the death penalty. Three states — Alabama, Florida, and Delaware — permitted that practice at the time, and Alabama is the only one that still allows it.
Intellectual Disability
Despite obvious indications that Mr. Smith was intellectually disabled, trial counsel did not do adequate IQ testing or other psychological testing to provide the jury with a proper understanding of Mr. Smith’s intellectual deficits.
After his trial and initial appeal, new lawyers for Mr. Smith challenged the reliability of the trial and presented additional evidence of his intellectual disability, including IQ scores demonstrating significant subaverage intellectual functioning and experts who testified that he had the reading skills of an eighth grader and the math skills of a sixth grader.
“Alabama does not dispute that Willie Smith has significantly below-average intellectual functioning,” Justice Sonia Sotomayor wrote. And the State’s expert agreed that Mr. Smith had adaptive difficulties with “community use, health and safety, self-direction, social skills, and leisure skill areas,” but nonetheless determined that Mr. Smith was not intellectually disabled based on a weighing of adaptive strengths.
In 2012, the state court denied relief and agreed with the State that Mr. Smith’s adaptive strengths and deficits need to be weighed against each other. It concluded that Mr. Smith’s adaptive deficits were not enough to show intellectual disability because they were outweighed by his strengths.
In 2017, the U.S. Supreme Court held in Moore v. Texas that states may not weigh a defendant’s adaptive strengths against his adaptive deficits. The Court explained that many individuals with intellectual disabilities have both adaptive deficits and adaptive strengths, and “significant limitations in conceptual, social, or practical adaptive skills [are] not outweighed by the potential strengths in some adaptive skills.”
The Eleventh Circuit Court of Appeals held that the weighing analysis used by the Alabama courts in denying relief to Mr. Smith in 2012 would not be appropriate today. “This approach was acceptable at the time,” the federal appeals court wrote. “But after Moore, it no longer is.”
What is tragic about Mr. Smith’s case is that the decision about whether his low intellectual functioning made him ineligible for the death penalty was based on an outdated and faulty analysis. It is a mere technicality that the Supreme Court set out the appropriate scientific analysis in 2017, but the Eleventh Circuit nonetheless held that Moore did not apply to Mr. Smith’s case because it was decided after the state court’s decision. The court wrote that its denial of relief on Mr. Smith’s claim was “a matter of timing.”
Religious Exercise
The State of Alabama planned to execute Mr. Smith by lethal injection on February 11, 2021. Mr. Smith asked to have his pastor with him in the execution chamber to hold his hand and pray with him for redemption as he is being put to death, but the State refused his request.
Mr. Smith’s attorneys challenged that decision, arguing that a death row prisoner is entitled to have his religious advisor present in the execution chamber at the time of death under federal law protecting the right to religious exercise.
The Eleventh Circuit Court of Appeals granted an injunction requiring the ADOC to permit Mr. Smith to have his pastor present in the execution chamber at the time of the execution. The State appealed, but the Supreme Court upheld the injunction because it found the State failed to show a sufficient reason to deny Mr. Smith’s right to religious exercise by barring his pastor from the execution chamber. The execution was called off shortly after the Supreme Court issued its order.
On September 1, after the State indicated that Mr. Smith would be allowed to have his personal pastor present with him during the execution, the Alabama Supreme Court set a new execution date for October 21, 2021.
Americans with Disabilities Act
On June 1, 2018, a new law authorizing Alabama officials to carry out executions by nitrogen hypoxia went into effect. It gave people under a death sentence 30 days to elect nitrogen hypoxia over lethal injection.
A few days before the deadline, prison officials distributed an election form to people on death row with instructions to sign, date, and return the form if they wished to be executed by nitrogen hypoxia.
Lawyers for Mr. Smith argued that his intellectual deficits made it impossible for him to elect a different method of execution without help. Counsel argued that the Alabama Department of Corrections violated the Americans with Disabilities Act by failing to provide assistance to Mr. Smith even though prison officials were aware of his intellectual disability.
Because Mr. Smith could not understand how to elect Alabama’s new execution method, he argued, the State executed Mr. Smith by lethal injection, a more painful method than nitrogen hypoxia.
