Sometimes I have to wonder about the utter stupidity of some people. Willie B Smith III was sentenced to death in Alabama for the 1991 murder of Sharma Ruth Johnson in Birmingham. Mr Smith and his cronies abducted her at an ATM, forced her to withdraw $80 in cash, at which point they took her to a cemetery, upon which Mr Smith shot her in the back of the head.

The too-few readers of The First Street Journal know that I am opposed to capital punishment, but that is not the point of this article.

Mr Smith was scheduled to be executed, and requested that his pastor accompany him into the death chamber. The Department of Corrections refused, and Mr Smith’s attorney sued. The Court of Appeals for the Eleventh Circuit issued an injunction stating that Mr Smith had a right to have his pastor present. Alabama could have simply granted Mr Smith’s request, and proceeded with the execution, but no, the State had to get all high and mighty and appeal to the Supreme Court, where the state lost. From The Washington Post:

Supreme Court says Alabama cannot execute inmate without his pastor present

By Robert Barnes | February 12, 2021 | 8:12 AM EST

The Supreme Court said late Thursday night that Alabama could not execute a death row inmate without the man’s pastor by his side, and indicated that other states must find a way to honor final requests for a spiritual adviser in the death chamber.

The court’s order came an hour before Alabama’s self-imposed deadline of executing Willie B. Smith III, convicted of a 1991 robbery and murder. A lower court had put the execution on hold, and Alabama asked the Supreme Court to step in.

But the request divided the court’s conservative majority. For the first time since she joined the court in October, Justice Amy Coney Barrett sided with liberal colleagues in a capital punishment case, saying federal law requires states to make accommodations for prisoners like Smith.

Barrett joined an opinion by Justice Elena Kagan that said a federal law protecting the religious rights of prisoners set a high bar Alabama did not meet.

There’s more at the original.

I have to ask: why did the state not simply allow Mr Smith’s pastor into the execution chamber? If the pastor agreed to perform that onerous duty, and agreed not to be disruptive, there was no practical reason not to allow this. Faced with the injunction from the Eleventh Circuit, the State had to know that its legal position was shaky, and that if the Supreme Court declined to end the injunction, the execution date would pass with Mr Smith still breathing.

And that’s what happened. Mr Smith is still alive. As an opponent of capital punishment, I think that’s a good thing. More, it exposes just how stupid states can get when it comes to capital punishment. Pennsylvania, for instance, has 142 people on death row, but has actually executed only three men since the reinstatement of capital punishment in 1974 . . . and all three men “volunteered,” voluntarily dropped all of their appeals to just get it over. Despite all of the additional costs that come with a capital sentence, the Keystone State has not been able to put anyone to death against his will!

Governor Tom Wolf (D-PA) is an opponent of capital punishment, but does not have the authority to commute death sentences without the recommendation of the state Board of Pardons and Paroles. He can, and has, refused to advance any capital sentences toward execution. But, don’t blame Governor Wolf too much; the previous Governor, Republican Tom Corbett, a strong supporter of capital punishment, signed 47 death warrants during his four years in office, and there were still no executions during his term. Is not stupidity involved in maintaining capital punishment in the Keystone State?

California has 711 people on death row, but has executed only 13 since 1976, and the last one was in 2006. Is not stupidity involved in having capital punishment in the Pyrite State?

Alabama? Well, the state has been successful in carrying out executions, 67 of them since the restoration of capital punishment. But with the stupidity, and yes, stupidity is the right word, shown by Jefferson Dunn, Commissioner of the Department of Corrections, it’s amazing that he’s been so successful. It would have been far more efficient, and less expensive, to have simply granted Mr Smith’s last request. By doing that, the state would have been able to carry out the sentence; by fighting it, the state lost, and failed to carry out the execution.

Justice Brett Kavanaugh, who dissented from the decision not to vacate the injunction, wrote:

Because the State’s policy is non-discriminatory and, in my view, serves the State’s compelling interests in ensuring the safety, security, and solemnity of the execution room, I would have granted the State’s application to vacate the injunction.

But the Court has a different view and denies the State’s application. Given the stays of execution here and in Gutierrez v. Saenz, it seems apparent that States that want to avoid months or years of litigation delays because of this RLUIPA (Religious Land Use and Institutionalized Persons Act) issue should figure out a way to allow spiritual advisors into the execution room, as other States and the Federal Government have done. Doing so not only would satisfy inmates’ requests, but also would avoid still further delays and bring long overdue closure for victims’ families.

In other words, Justice Kavanaugh said to states which still have the death penalty, don’t be stupid!

As the Post noted, while we know that Chief Justice John Roberts and Associate Justices Clarence Thomas and Kavanaugh sided with Alabama, the votes of Justices Neil Gorsuch and Samuel Alito are not mentioned. At least one of them must have voted along with Justices Elena Kagan, Sonia Sotomayor, Steven Breyer and Amy Barrett, to form a majority.

The easiest non-stupid thing to do would be to simply eliminate capital punishment. It’s actually cheaper to imprison someone for life than it is to execute him. And Alabama’s stupidity in this case is just one more in a long list of dumb behavior the courts have had to adjudicate as states have tried to put people to death.