Dunn v. Smith

Leveling down to avoid religious accommodations

Until recently, Alabama required that a clergy member be present at the execution of a prisoner. But in 2019, the Alabama Department of Corrections abruptly changed its policy to instead ban all clergy members from the execution chamber in response to a Supreme Court ruling in a Texas prisoner’s case, Murphy v. Collier.

In the Texas case, Patrick Murphy was awaiting death by lethal injection, and his final request was for his Buddhist minister to pray with him at his execution. The state of Texas denied his request, arguing that his Buddhist minister was a security risk, even though the state allowed Christian ministers and Muslim imams into the chamber and the minister was a frequent chaplain to Texas prisoners. On March 28, 2019—two and a half hours after Murphy was scheduled to die—the Supreme Court stepped in and said that Texas could not go forward with the execution unless it granted Murphy access to his Buddhist spiritual advisor.

As a result of the Supreme Court’s decision, Texas and Alabama made an ugly move to avoid accommodating minority religions. Both states changed their policies to ban all clergy members from the execution chamber.

Defending the comfort of clergy in the death chamber

Fast forward to 2021. Alabama prisoner, Willie B. Smith was scheduled to be executed for his crimes on February 11, 2021. Smith’s minister, Pastor Robert Paul Wiley, Jr., attested that during his time in prison, Smith repented of his sins and developed a strong personal faith. Pastor Wiley has spent years ministering to Smith in prison. Smith asked that Pastor Wiley be allowed to accompany him in the execution chamber but, in accordance with Alabama’s new discriminatory policy, his request was denied.

Smith sued the state of Alabama for his right to be accompanied by his pastor at the moment of death. The district court ruled against Smith, but the United States Court of Appeals for the Eleventh Circuit ruled in his favor. Alabama appealed to the Supreme Court on February 11, 2021, the morning of Smith’s scheduled execution.

Becket filed a friend-of-the-court brief in support of Smith, arguing that 13 out of 20 prisoners executed in the United States over the past year were allowed to have a clergy member of their choice present in the execution chamber. If the federal government and other states have been able to offer this religious accommodation, so too should Alabama. The brief also argued that the Constitution requires more than equal, bad treatment for all faiths. It requires that all Americans, including prisoners, be accommodated in their religious exercise whenever possible.

Late on the night of February 11, 2021 the Supreme Court declined to disturb the court of appeals ruling that Alabama must allow Smith to be accompanied by his pastor in the execution chamber. Justice Kagan, joined by Justices Breyer, Sotomayor, and Barrett, agreed with the Court’s decision, writing that “past practice, in Alabama and elsewhere, shows that a prison may ensure security without barring all clergy members from the execution chamber.”

Importance to Religious Liberty:

• Individual Freedom: Religion is an innate human desire, and all individuals regardless of their legal status deserve protection of their constitutional right to practice and adhere to their faith.
• RLUIPA: Like the Religious Freedom Restoration Act (RFRA), the Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed with bipartisan support. RLUIPA ensures religious liberty in two areas where it is most vulnerable: land use and prisons.