Supreme Court

SCOTUS Refuses to Let Alabama Execute Willie Smith Without His Pastor Present (Without Noting Who Cast the Fifth Vote)

With Justice Barrett joining Justice Kagan, does Dunn v. Smith represent a shift on the Court?


On Thursday, while most were focused on the impeachment drama on Capitol Hill, the Supreme Court denied Alabama's request to vacate an injunction barring the execution of Willie Smith. While some justices noted their position in Dunn v. Smith, we do not know who formed the majority rejecting the request.

At issue was Smith's request to have his pastor present at the execution. Alabama bars all clergy from the execution chamber, and Smith claimed this violated his religious liberty rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Justice Kagan issued a brief opinion concurring in the denial, joined by Justices Breyer, Sotomayor, and (perhaps surprisingly) Barrett. "Alabama has not carried its burden of showing that the exclusion of all clergy members from the execution chamber is necessary to ensure prison security," Kagan wrote on behalf of four justices. This leaves a mystery: Who was the fifth justice who refused to vote in favor of vacating the stay barring Smith's execution?

Justice Kavanaugh wrote a brief dissent, joined by the Chief Justice, concluding Alabama's policy was permissible because it was non-discriminatory and, in his view, "serves the State's compelling interests in ensuring the safety, security, and solemnity of the execution room." The Court also noted Justice Thomas would have granted the application.

Four justices were on record rejecting Alabama's application. Three justices indicated they would have granted it. This leaves two justices unaccounted for, raising the question which of the two provided (if not both) voted against granting Alabama's application.

Neither Justice Gorsuch nor Justice Alito is known for being particularly solicitous of claims filed by capital defendants. On the other hand, both have been quite supportive religious liberty claims. The conventional wisdom may be that Justice Gorsuch is more likely to be a "cross-over" vote than Justice Alito, but the latter authored an important RLUIPA decision (Holt v. Hobbs) and has been particularly outspoken on the importance of religious liberty of late.

If I had to guess, I would think Justice Gorsuch provided the fifth vote to deny the application, though it is also possible both opted to leave the lower court's injunction in place. Either way, the Court's line-up in Dunn–Barrett and either Gorsuch or Alito (if not both) joining the liberals with Thomas, Kavanaugh and the Chief Justice in dissent–is quite unusual. Is it a sign of things to come? We'll have to see.

NEXT: Today in Supreme Court History: February 13, 2016

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  1. I personally think there should be a requirement that all Supreme court votes with any effect, (Such as on cert requests.) should be role call votes.

    If we’re going to be stuck doing Kreminology, we should at least be entitled to the necessary data.

      1. KHHHHHT……


        [That is the sound of hell freezing over.]

  2. “Until two years ago, Alabama required the presence of a prison chaplain at an inmate’s side. (It gave up the practice only when this Court barred States from providing spiritual advisors of just one faith.)”

    That explains the coalition — those (Kagan) who want all faiths and those (ACB) who want faith in general.

    1. The murder victim should have requested the comfort of a personal pastor. The lawyer profession is shamefully pro-criminal.

  3. Has to have only his own pastor, not just any pastor. His pastor will, of course, be busy, or in quarantine against COVID. I suggest some COVID arguments be used in death penalty appellate practice. A little nitpicking in lawyer rent seeking, to prolong the salary of worthless appellate lawyers on both sides, and of these worthless Justices in the middle.

    I have come to oppose the American death penalty. It is a mere rent seeking lawyer scam, taking in $billion for appellate practice, and providing no value whatsoever.

    I thought we needed 10,000 executions a year to incapacitate the violent criminals. This was the violent male birth cohort and the proper dose of the death penalty in the dose-response curve. We now have 70000 overdose deaths, way beyond the wildest estimate of pro-death penalty advocates. Crime may disappear from the extinction of the criminals. Fentanyl is now being added to all illegal drugs. I support all sentencing reform, to loose more criminals for disposition by fentanyl in the street.

    I have come to support the Italian death penalty. Guard waves a carton of cigarettes. The difficult, violent inmate is stabbed 50 times. The investigation finds he committed suicide. The “suicide” rate is now 20% of all prison deaths in Europe.

  4. So, what happens when the convict’s ‘pastor’ refuses to be present? The execution is denied? A back-door way to prevent death penalties?

    1. What happens when the prisoner’s spiritual adviser is an Aryan Brotherhood Kindred, a charismatic murder like Charles Manson, a Radical Imam detained at Guantanamo or even an anti-death penalty activist likely to disrupt the proceedings?

      Prisoners could make such demands to delay their punishment or just to mess with the system.

    2. So, what happens when the convict’s ‘pastor’ refuses to be present?

      Then they ask him if he has another choice, and if he doesn’t, or if that person also refuses, then they execute him w/o a pastor because it’s no longer the state denying him a pastor.

  5. Weird country. It’s fine for the government to kill its own citizens with malice aforethought, but god forbid you mess with their religious rights while you do it.

    1. Don’t let us keep you here

    2. Not mentioned is that he is to be executed for the “1991 murder of 22-year-old Sharma Ruth Johnson in Birmingham. Prosecutors said Smith abducted Johnson at gunpoint from an ATM, stole $80 from her and then took her to a cemetery where he shot her in the back of the head. The victim was the sister of a police detective.”

      1. What does that have to do with anything?

        1. Certainly seems a legitimate reason for a death penalty…

          1. If you think there is such a thing.

            1. I do. I see no way of rehabilitating such a person, nor do I see any reason why the taxpayer should be obliged to provide for it’s care for 50 or more years, with better conditions than (say) a member of the military can expect.

              What would you suggest as an appropriate punishment for a person who kidnaps and robs a young woman, then executes her?

              1. I agree with you in this case, and in most cases, except that too many death penalty executions have been innocent people. I mean, they may have been low lifes who belonged in prison, but they had not done the crime they were executed for.

                The Illinois governor commuted every death sentence to life without parole because (not remembering the exact numbers) in one year, 12 prisoners had been executed, and 13 had been exonerated due to being framed by police or prosecutors. I mainly remember it was one more exonerated than executed.

                I have come to the conclusion that not only is State execution immoral, it is also a handy dandy way to cover up malfeasance. Cops have become some of the laziest sods around, and all they have had to do, apparently, in Illinois at least, is arrest any random low life and make up a bit of evidence. Even if all of the exonerated prisoners were low lifes who society won’t object to being locked up, the real killers are still out there, and that really bothers me.

              2. Also, other than being in actual combat, I doubt very many troops have better living conditions than death row prisoners.

                1. Every single member of the US Military is subject to being in absolutely shit conditions in combat.

                  Prisoners are ‘entitled’ to cable TV, libraries, air conditioning, etc..

                  1. Combat conditions don’t count. They volunteered knowing it would be dangerous.

                    1. Criminals choose to be criminals, except being a criminal is not at all altruistic or a benefit for society. They just thought they could rob, rape, steal and get away with it.

                  2. Not to mention gender reassignment surgery.

              3. Life in prison.

                Capital punishment, but the nature the US enforces it, values certain lives over others. That’s unjust and immoral. Your chances of being executed vary in relation to your race, the victim’s race, your zip code, the victim’s zip code, and even the victim’s employment.

                And I can show you at least 130 Death Row exonerations since 1989 alone. That’s 130 times in the last 32 years that we’ve come close to executing the wrong person – an innocent person – and have let the guilty go unpunished.

                End the death penalty now.

                1. So you liberals demand an end to mandatory death penalty for certain convictions, saying that juries need to be able to exercise discretion, and when they exercise discretion in a way you don’t like, then that’s prove of animus.

                  Fuck you people. You are dishonest hacks. You just want the death penalty ended by any means necessary, and you come up with bullshit constitutional justifications after the fact.

                  1. We shouldn’t have the death penalty because it serves no useful purpose and its existence and implementation fuck up the criminal justice system from top to bottom. Besides, it’s way too expensive. Better to give every death penalty proponent a lifetime subscription to Hustler.

                    1. If death penalty cases were cheaper, I assume that would be a good argument in favor to you. Yet it would be a terrible reason.

                    2. “If death penalty cases were cheaper, I assume . . .”

                      Logic is not your strong suit.

                2. If Life in Prison was actually life in prison, and prison was not a goddamned vacation with cable TV, air conditioning, medical care, sports, legal representation – no matter how good or bad, then fine.

                  But it does not…Someone can be sentenced to life and five or ten or twenty years later some do-gooders decide that they knew better and let them out.

                  1. “Prison is a goddammed vacation,” said no person who had ever been in prison, or on vacation.

                    1. Honestly. I am amazed at the ignorance. I have a relative in prison for (virtually) life.

                      They are not fed enough to maintain their body weight–they have to buy extra food. (Great for those who have relatives with means.)

                      The food they eat is of extremely poor quality; MREs would be a huge upgrade.

                      They have to purchase their own TVs and the shows they can watch are determined by the warden.

                      The “exercise” is limited to an open yard–no running allowed; no jump ropes; no weights.

                      Medical care? Try reading a few of the Short Circuit decisions about inmates deliberately left to suffer and die from disease.

                      Legal representation? Is this a serious objection? So it is ok to deny citizens legal representation now?

                      Total lockdowns are frequent–meaning 2 showers/week and no exercise (completely in the cell, 24/7)–and last for months.

                      Visitors are frequently forbidden for months at a time.

                      Physical danger is extreme and unending. My relative (who weighs 135 lbs) has been almost beaten to death twice. He refuses to join a white gang to protect himself. Oh- and his TV was stolen, but cannot be replaced because he won’t report the theft. Of course, if he reports the theft, he gets killed.

                      The guards and the prison nurses bring in drugs. Nice. Don’t think I need to say anymore about that. When I and another relative started to look into this, we were told in no uncertain terms by people familiar with the DOC to leave it alone. Not only would our relative be killed, we would be targeted as well.

                      So tell me again what a great place prison is.

              4. We’ve already paid for 30 years — 1991-2021…

          2. Well, given that the victim was the sister of a police detective, clearly he deserves the death penalty almost as much as Himmler did.

    3. “Weird country. It’s fine for the government to kill its own citizens with malice aforethought, but god forbid you mess with their religious rights while you do it.”

      Of course you shouldn’t mess with people’s religious rights when they are being criminally punished, whether you agree with the punishment or not.

      People being criminally punished in the US are allowed to wear headscarves and other religious symbols, which gives them more rights than French schoolchildren who have never committed a crime.

    4. “with malice aforethought”

      Nope. There is you mistake right there. Legally authorized killing is not malice aforethought. Any more than killing in self-defense, or killing by soldiers in the course of battle.

      1. Which part of it are you disputing? The malice or the aforethought? Because the whole point of killing in self-defense and killing in batle is that it isn’t premeditated.

    5. Lol at the sneering Dutchman whose country regularly executes non-criminal human beings in the name of Euthanasia.

  6. I am embarrassed to be an American, when details of such a barbaric practice are discussed so dispassionately. I’m reminded of court opinions as to whether a dentist examination is required to ensure the number of healthy teeth when selling a slave.

    1. If you’re embarrassed to be an American, there are ~200 other countries for you to choose from.

      1. You don’t know what you’re talking about.

        1. Why? There are roughly 200 other countries (190-ish?). Find one that is more accomodating of your sensibilities, if ours are so heinous.

        2. It’s pretty clear he does.

          If you’re so embarrassed to be an American, you have an option. Leave.

          Sweden, Mexico, Canada, China, even Svalbard….

          All areas you can move to pretty easily as an American. Take advantage of that citizenship you’re so embarrassed by, and use it to live elsewhere.

    2. It is indeed embarrassing that it will take 30 years or more to see justice done in this case.

      1. That is the main problem with the death penalty in America

        1. No, the main problem with the death penalty is all the innocent guys we keep sentencing to death.

          That’s been enough to turn me against. I don’t trust the government in any other matter, so why the fuck should I trust the justice system?

          1. Well, I would agree that anyone on death row who has a claim that can be validated by DNA should have that DNA analyzed preferentially….

            And also, any law enforcement industry agent (including cops, states attorneys and judges) that falsify evidence or corrupt the process should suffer the same penalty they inflicted.

    3. That slave whose teeth got examined – did he do the stuff Willie Smith and his buddies did?

      “Willie B. Smith III, 51, was sentenced to death in 1992 for the October 1991 abduction, robbery and murder of Sharma Ruth Johnson, 22. Johnson was shot execution style at a cemetery; her body was found in the trunk of her burned car with a shotgun wound to her head. Smith and two men stole Johnson’s bank card and used it to withdraw $100 from an ATM on Parkway East in Birmingham.”

    4. I find it offensive that you would equate innocent men and women sold into bondage to the most heinous of murderers, convicted by a jury of their peers and whose convictions and death sentences are upheld after numerous appeals.

  7. I wonder how many proponents of RLUIPA didn’t really think through all the unintended consequence.

    1. I don’t know, but in the original RFRA, they specifically voted to keep the bill’s protections for convicted prisoners – even though they knew there would be prisoner lawsuits by Bad People.

      Maybe the law’s proponents are aware that Bad People will invoke the law’s protections and get entitled to the balancing test just like Good People?

      1. And of course as far as the RLUIPS, institutionalized persons includes convicted criminals in prison – and by extension Death Row. Maybe Congress was aware of that, much as I hate to give them credit for anything.

  8. Your contribution on CNN this morning was lucid, intelligent, and well-thought-out, Prof. Adler.

    It’s just a matter of time before you ditch the Republican Party. Why not start the path of enlightenment now?

  9. I find it interesting that Justice Kagan suddenly realizes how important religious rights are, and how the state should NEVER be able to interfere with them…

  10. Lets note that SCOTUS ruled the other way when the prisoner was Muslim.

    1. With the same line-up of Justices?

      1. Surprise surprise. Sides pick their outcome, then switch up vitally important principles, depending on whether they support The Goal or not.

        It’s tough to have honest discussions on principles when they are abandoned next subject over.

      2. Of course not. Why the stupid question?

    2. Kagan, Breyer and Sotomayor voted consistently. Barrett wasn’t around. So, either Gorsuch or Alito flipped. The stated reason in the prior case was the condemned waited too long. I’m not sure if this case presents a reasonable distinction for the flipper to fall back on.

    3. The 1st Amendment shouldn’t protect Moos-lims at all, so I’m okay with that

  11. Votes to convict or acquit should be by secret ballot.

  12. This is a tough one for conservatives.

    There’s the ‘get to kill a black guy’ part. There’s the superstition part. There’s the ‘we hate government until it wants to kill someone’ part. There’s the ‘own the libs’ part.

    Very few conservatives are able to manage that many concepts. So the default will be just be ‘kill the black guy.’

    Carry on, clingers.

    1. With his casual attitude toward human life, maybe it’s *Smith* who was the conservative.

      “The execution style shooting at a cemetery by Smith after Johnson was held in the trunk of her own car, occured after he instructed Angelica Willis, who he lived with, to ask Johnson for directions.

      “Smith proceeded to approach the vehicle with a sawed-off shotgun, demanding Johnson get out of the car and into the trunk.

      “He later returned to the location to retrieve Johnson’s bank card which had fallen onto the floor, and forced her to tell him her details before he withdrew $80 from an ATM.

      “He picked up his brother, Lorenzo, before the trio drove to Zion Memorial Cemetery where Smith decided he had to kill Johnson, fearing she would go to the police.

      “The vehicle was abandoned with Johnson’s body still in the trunk, before Smith returned the following day to burn the car and destroy any evidence….

      “She was subjected to a brutal death in the trunk of her own car after pleading with Smith for her life, assuring him she would not go to the police.

      “Smith was recorded on a wire tap describing her final moments before the slaying: “She said, no I ain’t like that, she said that. I touched her head, I said you’re a m***********g liar, boom!””

      1. Why do conservatives figure government is ineffective, misguided, unreliable, and corrupt . . . until it is time for government to try to kill someone — especially a black person — at which time conservatives turn 180 degrees and contend government is efficient, trustworthy, righteous, even infallible?

        Other than right-wingers’ racism and belligerent ignorance, I mean.

        1. I’m not even sure I have confidence in the U. S. version of the death penalty, but I wonder if you can identify the inbred hick who said this:

          “When there has been brought home to any one, by conclusive evidence, the greatest crime known to the law; and when the attendant circumstances suggest no palliation of the guilt, no hope that the culprit may even yet not be unworthy to live among mankind, nothing to make it probable that the crime was an exception to his general character rather than a consequence of it, then I confess it appears to me that to deprive the criminal of the life of which he has proved himself to be unworthy–solemnly to blot him out from the fellowship of mankind and from the catalogue of the living–is the most appropriate as it is certainly the most impressive, mode in which society can attach to so great a crime the penal consequences which for the security of life it is indispensable to annex to it.”

          1. Capital punishment in Britain was abolished in 1965 largely because of the hangings of Timothy Evans and Derek Bentley both of whom were probably innocent of the crimes for which they were hanged. Bentley, for one, received a posthumous pardon from which, of course, he received no benefit. I wonder how Mill would have reacted upon learning that at least some of those solemnly blotted out were so blotted out in error; when he learned that the hanging of innocents was not just an abstract possibility but a sure reality.

            Of course, no system of justice can be expected to be perfect. But, it is within the power of every system of justice to excise the imperfection which is the possibility of taking an innocent life in its name.

          2. He was also in favour of giving educated people more votes in elections.


            1. I’m not endorsing him, I’m simply pointing out he wasn’t a rural Southern clinger – he was a Top Intellectual and on the Right Side of History.

        2. “especially a black person”
          Bigotry ins strong in this one. Carry on, hater.

    2. Lol at the sneering Dutchman whose country regularly executes non-criminal human beings in the name of Euthanasia.

  13. I don’t think there is a constitutional right to have a religious advisor in the death chamber. There should be no discrimination against religious vs. secular advisors and all religions should have the same access.

    But, it seems totally reasonable and constitutional to allow nobody except necessary prison staff in the room.

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