The execution was scheduled to take place at Holman Correctional Facility in Atmore at 6 p.m., but Linda Mays, a spokeperson for the Alabama Department of Corrections, has said we are “waiting on the Supreme Court” to rule in the case. The U.S. Supreme Court has not yet issued a formal stay — temporary or otherwise — in Smith’s case.
Barring court action, however, Gov. Kay Ivey is the only person with the legal power to stop the execution.
“Y’all, that was a horrendous crime that Willie Smith committed. Just horrendous,” Ivey told reporters following a luncheon in Birmingham Thursday. “We’ve looked at the facts and, wow, and it’s tragic.”
Ivey said she and her team were still studying the facts of the case and had a meeting with her legal counsel set for later Thursday afternoon.
“The execution is scheduled and, in all likelihood, will go forward,” Ivey said.
This is not the first time the state has been scheduled to execute Smith. Prison officials were set to execute him in February, but the U.S. Supreme Court stayed the lethal injection, ruling that the condemned inmate was entitled to have a pastor present with him for his death.
Smith has expressed his desire to be executed by nitrogen suffocation, a method approved by the Alabama Legislature in 2018.
An execution using the method, which involves replacing oxygen needed to breathe with nitrogen gas, has never been carried out in the United States. Oklahoma and Mississippi are the only other states that have authorized its use.
Inmates were given the option to choose whether to be executed through lethal injection or nitrogen suffocation during a 30-day period in 2018, but Smith did not opt-in during that time. Smith’s lawyers have argued that he would have done so if he were able to understand the form prison officials provided him on the issue. Because they did not provide Smith, whose IQ is around 70, an accommodation to better understand his options, prison officials violated the inmate’s right under the Americans with Disabilities Act, his lawyers have said.
A trial on Smith’s disability claim was scheduled for 2022 before Judge Emily Marks, a Trump appointee, dismissed the lawsuit on technical grounds.
A federal appeals court reversed that dismissal, saying Marks had made her decision in error, and ordered her to reconsider Smith’s case.
Judge Marks’ reconsideration was swift, taking only two days. On Sunday, she denied Smith’s request for a preliminary injunction — a court order that would have delayed his execution until his disability claim was heard in full.
Smith’s lawyers brought the case back to the Eleventh Circuit Court of Appeals, arguing that Marks once again made an error in legal judgment. The court denied that appeal Thursday morning, although one judge called the Alabama Department of Corrections’ actions in the case disturbing and “feckless.”
“Alabama’s legislature gave death-row prisoners a choice in the manner of death,” Pryor wrote. “ADOC ostensibly intended to inform Mr. Smith of his right to choose death by nitrogen hypoxia. Mr. Smith intended to exercise that right, but because of his disability, he was unable to do so. ADOC has acknowledged that it could, if ordered to do it, give Mr. Smith another chance to make the election. Under these circumstances, I cannot silently acquiesce in the State’s refusal to afford Mr. Smith this final dignity.”
Smith’s legal team has now appealed the Eleventh Circuit’s decision to the United States Supreme Court ahead of tonight’s scheduled execution. They have asked the court to temporarily stay Smith’s execution while his petition of certiorari is considered. Even if granted, the temporary stay could be lifted within hours, allowing the execution to move forward.
In 2002, the U.S. Supreme Court ruled it is unconstitutional to execute intellectually disabled individuals. In 2017, it ruled that courts must apply up-to-date medical analysis about mental capability when determining whether an inmate can be executed. Despite these decisions, the same federal appeals court that denied Smith relief today decided that because these high court rulings came after Smith’s death sentence, they did not apply to him, calling it “a matter of timing.”
“What is tragic about Mr. Smith’s case is that the decision about whether his low intellectual functioning makes him ineligible for the death penalty was based on an outdated and faulty analysis,” the Equal Justice Initiative, a Montgomery-based nonprofit has said.
Prison officials have limited press access to witness Smith’s execution. Citing concerns over COVID-19, the Alabama Department of Corrections has said that only one reporter — a member of the Associated Press — will be allowed to witness Smith’s final moments. Press outlets across the state have objected to the policy, which was put in place before COVID-19 vaccines were made widely available.
Ahead of today’s scheduled execution, two former Alabama governors said Smith’s case raises serious questions about the death penalty, citing the man’s mental capacity as one important issue to be considered.