BIRMINGHAM, Ala. (WIAT) -- Today the State of Alabama is scheduled to execute Willie B. Smith, an intellectually disabled Black man, for the murder of Sharma Ruth Johnson in 1991.
The execution will take place at Holman Correctional Facility in Atmore at 6 p.m. unless a court or Gov. Kay Ivey intervenes.
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.
Now, Smith's lawyers have once again brought the case to the Eleventh Circuit Court of Appeals, arguing that Marks once again made an error in legal judgment. Whether or not the court sides with Smith, it will likely be up to the United States Supreme Court whether to move forward with his execution before the state's death warrant expires at midnight.
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.
For the most up-to-date information on Smith's execution, follow CBS 42's Lee Hedgepeth on Twitter or on Facebook. Hedgepeth will be reporting on location from Holman Correctional Facility.
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