Death rights at the Supreme Court

A divided Supreme Court at the 11th hour hit pause on an execution in Alabama. The justices on Thursday found the state violated the inmate’s religious freedom by blocking his pastor from being present at the moment of death. In her opinion, Justice Elena Kagan agreed with the appeals court that Alabama had not shown prison security required excluding all clergy from the execution chamber.

Willie Smith faced lethal injection for the 1991 robbery and murder of 22-year-old Sharma Ruth Johnson. Prison officials had restricted Smith’s pastor to observing from an adjacent room, rather than being in the execution chamber. Kagan cited the Religious Land Use and Institutionalized Persons Act (RLUIPA), which only allows the government to limit religious freedom if it can prove a compelling interest and uses the least restrictive means available. “The law guarantees Smith the right to practice his faith free from unnecessary interference, including at the moment the state puts him to death,” Kagan wrote.

The case divided the conservative wing of the bench. Chief Justice John Roberts and Justices Brett Kavanaugh and Clarence Thomas voted to allow the execution. Justices Samuel Alito and Neil Gorsuch did not weigh in with an opinion, but at least one must have voted with the majority. New conservative Justice Amy Coney Barrett joined Kagan’s decision.

The prison argued the warden had to determine who was trustworthy to be in the room. But Kagan criticized the resulting categorical bar to clergy. “The state can do a background check on the minister; it can interview him and his associates; it can seek a penalty-backed pledge that he will obey all rules,” she said. “What the state cannot do … is simply presume that every clergy member will be untrustworthy—or otherwise said, that only the harshest restriction can work.”

The Supreme Court has repeatedly addressed policies surrounding clergy access to death row inmates. In a March 2019 ruling, the justices stayed Patrick Henry Murphy’s death after Texas refused to allow a Buddhist spiritual adviser in the execution chamber. In a statement accompanying the decision, Kavanaugh said states could consider barring all clergy to avoid unfair treatment.

That’s what Alabama did. Kavanaugh was supportive, but suggested a better approach on Thursday. “States that want to avoid months or years of litigation delays because of this RLUIPA issue should figure out a way to allow spiritual advisors into the execution room,” he said. “Doing so not only would satisfy inmates’ requests, but also would avoid still further delays and bring long overdue closure for victims’ families.”