After the Supreme Court blocked an Alabama man's execution in February, the state is again preparing to execute him by lethal injection Thursday evening despite his lawyer's claims that he is intellectually disabled and has an IQ of 64.
The state scheduled Willie B. Smith III, 52, to receive a lethal injection at 6 p.m. CT for the 1991 kidnapping and murder of 22-year-old Sharma Ruth Johnson. The Supreme Court blocked Alabama's last attempt to execute him in February because the state would not allow him to have his pastor at his side.
Prosecutors said Smith wielded a gun when he kidnapped Johnson, a police detective's sister, while she removed money from an ATM, according to The Associated Press. They said he stole $80 from her and took her to a cemetery where he shot her in the back of the head.
Smith's lawyers, in the few hours remaining before his execution, are attempting to push forward a series of legal arguments to buy more time for him and much of it is dependent on their claims regarding his disability.
Last week, the federal public defender's office filed a lawsuit on Smith's behalf that argues that he was not given assistance in understanding a form given to death row inmates in 2018 that allowed them to adopt nitrogen hypoxia as an execution method.
The state allowed inmates 30 days to decide whether they preferred the method after Alabama passed a law adopting nitrogen hypoxia as an execution method, though they have not fully developed a protocol for it.
Smith's lawyers contend, under the Americans with Disabilities Act, he should have been given guidance regarding the form. Because he had not received any information regarding it, Smith never returned the form to authorities at the prison. Had he adopted the method, as many of his fellow death row prisoners did, he would not be eligible for execution.
"Because Smith suffers from 'significant cognitive deficiencies,' he alleges he was unable to 'enjoy the benefit of the statute and the election form' without being aided with comprehension of the form and its contents," the lawsuit says.
An audiology and speech science professor at University of Northern Colorado found the form to be at the 11th grade level, according to court documents. She found Smith's literacy level to fall between the third and fourth grade when she evaluated him.
A federal judge ruled Sunday that putting Smith to death by lethal injection did not violate his rights under the ADA, but his lawyers have since filed a motion in the U.S. Court of Appeals for the 11th Circuit in hopes of receiving a stay of execution so they can appeal the decision.
The Alabama attorney general's office rejects that Smith is disabled and has argued the claims are a stall tactic.
Smith's intellectual disability has long been at the center of his lawyer's arguments, however, and court documents show that there is support for the claims.
While the Supreme Court ruled in 2002 that executing disabled individuals was unconstitutional and a violation of the 8th Amendment's ban on cruel and unusual punishment, the 11th U.S. Circuit Court of Appeals decided in 2019 that this ruling could not be retroactively applied to Smith despite appearing to agree.
But those are not the only legal concerns or ramifications that Smith's execution could have.
Robert Dunham, the director of the Death Penalty Information Center, said the most significant issue is that Smith does suffer from an intellectual disability and should be constitutionally protected from facing the death penalty.
The other issue Dunham identified is that they came to an agreement regarding his ability to have a religious adviser in the death chamber to administer religious rites, touch him, pray out loud and remain in the room until the execution is completed. There is an upcoming Supreme Court case Nov. 1 between Texas and John Ramirez, a Texas death row prisoner who is only allowed to have his religious adviser in the room but without speaking or prayer.
"The fact that Alabama is able to carry out the execution demonstrates clearly that Texas' position has no legal merit under the Religious Land Use and Institutionalized Persons Act," he said.
The final concern is regarding an ongoing issue in Alabama where the number of witnesses allowed in the death chamber is limited because of the pandemic. While the state has changed its mind regarding this procedure after it only allowed one media witness at Smith's last scheduled execution, Dunham said it raises concerns about transparency.
"Initially, they were saying it wasn't safe enough for Willie Smith, to have the full complement of witnesses that he's legally entitled to have," he said. "They've ultimately agreed that he can have his six witnesses, but this is part of the ongoing lack of transparency around executions in Alabama."
Smith's would be the eighth execution in the United States in 2021, according to the Death Penalty Information Center. There are four more executions scheduled this year, three in Oklahoma and one in Texas.