BIRMINGHAM, Ala. (WIAT) — On Oct. 21, there will be limited press access to the execution of Willie B. Smith III, who has been on death row for nearly 30 years after being convicted of murdering a woman.
In a court document filed earlier this year, lawyers for the state said that only one member of the media, a representative of the Associated Press, will be allowed to witness the execution. The state cited concerns regarding the spread of COVID-19 as the reason for the press restriction. In previous executions, six members of the press, chosen through a structured lottery, were allowed in the witness room.
In 1991, Smith was convicted of murdering Sharma Ruth Johnson, the sister of a Birmingham police detective, when he was 22 years old.
Paige Oliver Windsor, USA Today’s state editor and executive editor of the Montgomery Advertiser, said that that the Alabama Department of Correction’s policy should change, given in part to the widespread availability of the COVID-19 vaccine.
“These concerns about COVID transmission, raised before a vaccine was widely available, are no longer a sufficient reason to restrict press access,” Windsor said. “The state has alternate means of safeguarding those in attendance and should be compelled to do so. There is no state act more serious than the taking of a life in the public’s name. Reporting on all aspects of these proceedings — from the time the condemned person enters the chamber until he or she is declared dead — is how a free press ensures the public’s business is carried out as prescribed. “
The regulations outlined in the state’s court filing state that visitors will be required to wear both masks and face shields while at the facility.
Brad English, director of marketing and governmental relations at the Alabama Press Association, said the move to limit attendance in the witness room to one AP reporter will significantly lessen media representation at a moment when public officials are exercising one of their most controversial powers. English’s organization represents independently-owned newspapers throughout the state.
“Few, if any, of the members of the Alabama Press Association are members of the AP,” he said.
Dennis Bailey, lawyer for the Alabama Press Association, said another issue with the restriction is that prison officials chose the AP to be present without input from other news outlets.
“When space does not allow all who desire access to attend, and the government defines who gets access to such spaces, then you are going to have a problem since those favored by the government may appear to receive preference over those critical of the government entity,” Bailey said. “Any media event with limited space (now more limited due to COVID) where the government picks who can attend is problematic unless they are using selection methods the press who want to attend generally agree are fair.”
Dan Shelley, executive director and chief operating officer of the Radio Television Digital News Association, echoed Bailey’s concerns about the ADOC’s explicit choice of the AP over other outlets to cover the execution.
“There are definite concerns about the state exercising an arbitrary, closed process for selecting its one designated journalist witness,” Shelley said in an email. “The state has an obligation to be transparent and inclusive when setting the ground rules for conducting its official business, especially when it involves carrying out the judicial system’s most severe of criminal sentences.”
Shelley said that while COVID-19 presents a “legitimate public health concern…the state should make every possible effort to grant access to as many journalist witnesses as possible in as safe a manner as possible. “
Smith’s planned execution has already attracted national interest. In February, the U.S. Supreme Court allowed a stay preventing his execution to remain in place while Smith asked courts to force Alabama to allow his pastor into the execution room. Officials had previously allowed an on-staff Christian pastor to attend executions, but prison officials ended the practice when a Muslim man asked that an imam be present for his death.
Since then, lawyers for the state have agreed to let Smith’s pastor in the execution room, a change that allowed them to successfully obtain an execution date of Oct. 21 from the Alabama Supreme Court.
Court documents show that Smith has an IQ of around 70, which classifies him as “intellectually disabled,” according to the American Psychiatric Association. In a 2002 case, the US Supreme Court ruled that executing those with such disabilities constitutes “cruel and unusual punishment” forbidden by the U.S. Constitution.
The method by which Smith was deemed eligible for execution has also been ruled unconstitutional, in a case called Moore v. Texas, but the Eleventh Circuit Court of Appeals said that decision came too late to impact Smith.
“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,” Montgomery-based nonprofit Equal Justice Initiative has said of the case. “It is a mere technicality that the Supreme Court set out the appropriate scientific analysis in 2017, but the Eleventh Circuit nonetheless held that Moore does not apply to Mr. Smith’s case because it was decided after the state court’s decision. The court wrote that its denial of relief on Mr. Smith’s claim was “a matter of timing.”
CBS 42 reached out to the Associated Press, Alabama Media Group, and the Alabama Broadcasters Association about this story, but did not hear back. Multiple attempts to reach someone at the Alabama Department of Corrections by email and phone were also not successful.