Last night, November 16, 2022, the State of Texas executed Stephen Barbee despite the violation of his constitutional right to a fair trial that occurred when his lawyers unexpectedly and impermissibly conceded his guilt to the jury despite Barbee’s insistence on his innocence.
The execution took longer than unusual because of Barbee’s physical disabilities, a concern that was raised in a legal challenge by his attorney but dismissed. According to prison spokesperson Amanda Hernandez, “Due to his inability to extend his arms, it took longer to ensure he had functional IV lines.”
Barbee was the fifth person executed by Texas this year and the second person put to death nationwide this week. Executions are scheduled in Alabama and Oklahoma today (November 17, 2022). Barbee was the last person to face execution in Texas this year, but numerous dates have been set already for 2023.
Original post: Tonight, November 16, 2022, the State of Texas is scheduled to execute Stephen Barbee despite the violation of his constitutional right to a fair trial that occurred when his lawyers unexpectedly and impermissibly conceded his guilt to the jury despite Barbee’s insistence on his innocence.
Barbee was convicted and sentenced to death in Tarrant County for killing Lisa and Jayden Underwood in 2005. This is the third execution date he has faced since 2019.
Last year, a federal judge granted a stay to Barbee based on his complaint that the Texas Department of Criminal Justice was planning to carry out his execution in a way that would violate his right to the free exercise of his religious beliefs. Although the U.S. Supreme Court upheld the religious rights of individuals facing execution in Texas in its opinion in Ramirez v. Collier, Barbee’s lawsuit in the federal district court regarding his specific requests related to his spiritual advisor was still pending and was the focus of final litigation efforts.
On November 15, a federal district court issued an amended preliminary injunction for Barbee after the 5th Circuit vacated the previous one as “overbroad.” The amended injunction states: “Texas [TDCJ] may proceed with the execution of Stephen Barbee only after it publishes a clear policy that has been approved by its governing policy body that (1) protects Stephen Barbee’s religious rights in the execution chamber pursuant to the Court’s holdings in its Memorandum and Order and the holding and spirit of Ramirez v. Collier, 142 S. Ct. 1264 (2022); and, (2) sets out any exceptions to that policy, further describing with precision what those exceptions are or may be.”
Barbee also filed a cert petition and a motion for a stay of execution at the U.S. Supreme Court asking for a review of his ongoing complaint alleging the violation of his religious rights. The Court denied both requests this afternoon.
Earlier this week, the Texas Board of Pardons and Paroles rejected Barbee’s request for clemency or a reprieve. In his application for clemency, Barbee argued that his attorneys failed to take any reasonable steps to establish his innocence or to present compelling mitigating evidence to the jury, particularly regarding the crucial special issue of “future dangerousness,” which a Texas jury is required to determine to impose a death sentence. Barbee did not have a criminal record prior to his arrest in 2005 and he has not committed a single act of violence since his incarceration on death row.
The application also noted that since his trial, Barbee’s physical health has deteriorated to the point that he is mainly confined to a wheelchair and is unable to attend to his basic hygiene needs. He has persistent, well-documented arm immobility and range-of-motion disabilities that the Texas Department of Criminal Justice has failed to treat and may cause excruciating pain if Barbee is placed in the usual position on the gurney with his arms straight to the side. Contrary to the jury’s determination of “future dangerousness,” he is not a physical threat to his fellow inmates or the prison staff.
Barbee is one of four people in four different states facing execution today and tomorrow. The other states are Alabama, Arizona, and Oklahoma. Barbee is the last person facing execution in Texas this year, but numerous dates have been set already for 2023.