A Texas man who murdered his pregnant ex-girlfriend and her son is set to die by lethal injection Wednesday evening, despite a last-minute attempt to postpone the execution.
Stephen Barbee, 55, was convicted in 2006 of the murders of his ex-wife, Lisa Underwood, and her 7-year-old son in February 2005.
He initially confessed to the heinous murders but later recanted, insisting that he only assisted co-defendant Ronald Royce Dodd in hiding the bodies after they were killed.
Barbee, who was scheduled to be executed by lethal injection at 6 p.m. CT Wednesday, has petitioned the US Supreme Court to stay his execution due to claims of religious freedom violations.
Despite a high court ruling earlier this year, the convicted killer’s attorneys claim Barbee’s religious rights are being violated because the Texas Department of Criminal Justice (TDCJ) lacks a clear, written policy on what spiritual advisers may do in the execution chamber.
According to the March ruling, states must accommodate death row inmates’ requests for religious counselors to pray and touch them during their executions.
At the time, the TDCJ said it would not update its original policy but would review related petitions on a case-by-case basis.
Earlier this month, US District Judge Kenneth Hoyt issued a preliminary injunction stating that Texas could only execute Barbee after it updated “a clear policy” in line with the Supreme Court ruling.
“TDCJ is now operating under an unwritten policy where prison officials may unilaterally decide whether to allow an inmate’s requested accommodation … the accommodation may be withdrawn at the will or caprice of any prison official at the last moment,” Hoyt’s ruling read.
Last Friday, federal appellate judges overturned Hoyt’s decision on the grounds that it was too broad. On Tuesday, Hoyt issued a second ruling, this time stating that the opinion only applied to Barbee.
“[TDCJ] may proceed with Stephen Barbee’s execution 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… and (2) sets out any exceptions to that policy, further describing with precision what those exceptions are or may be,” according to the new injunction.
The Texas Attorney General’s Office is appealing Hoyt’s decision to the US 5th Circuit Court of Appeals, the Texas Tribune reported. The 5th Circuit has to issue a ruling before the case can appear before the Supreme Court.
Also on Tuesday, Hoyt rejected a simultaneous request by Barbee’s attorneys to stop his execution on the grounds that he would be in extreme physical pain if strapped down to the gurney typically used in Texas executions.
In the request, Barbee’s lawyers argued that his ongoing mobility issues, which require him to use a wheelchair, would render him unable to straighten his arms to receive the IV for lethal injection.
Hoyt dismissed the case on Tuesday afternoon, stating that the prison warden had already agreed that Barbee would be housed in the execution chamber.
Barbee will be the fifth inmate executed in Texas in 2022, subject to a court decision. He is the last inmate scheduled to die by lethal injection in the state this year.