HOUSTON — A Texas inmate who killed his pregnant ex-girlfriend and her 7-year-old son more than 17 years ago was executed on Wednesday, after courts rejected his appeals over claims of religious freedom violations and indifference to his medical needs.
Stephen Barbee, 55, received a lethal injection at the state penitentiary in Huntsville at 7:35 p.m. He had been condemned for the February 2005 deaths of Lisa Underwood, 34, and her son Jayden. Both were suffocated at their home in Fort Worth. They were later found buried in a shallow grave in nearby Denton County.
The U.S. Supreme Court on Wednesday declined an appeal from Barbee’s lawyers to halt the execution.
Barbee’s attorneys had asked the U.S. Supreme Court to stay his execution, arguing his religious rights were being violated because the state prison system, in the wake of a ruling by the high court on what spiritual advisers can do while in the execution chamber, did not create a written policy on the issue.
In March, the U.S. Supreme Court said states must accommodate the wishes of death row inmates who want to have their faith leaders pray and touch them during their executions. Texas prison officials didn’t formally update their policy but said they would review inmates’ petitions on a case-by-case basis and would grant most reasonable requests.
Earlier this month, U.S. District Judge Kenneth Hoyt in Houston issued a preliminary injunction, saying the state could only execute Barbee after it had published a clear policy on spiritual advisers that protects an inmate's religious rights. Last week, the 5th U.S. Circuit Court of Appeals overturned Hoyt’s injunction, saying it was too broad. The appeals court said the Supreme Court was not requiring, but only recommending, states create written policies on this issue.
On Tuesday, Hoyt issued a new injunction focused specifically on protecting Barbee's rights. The 5th Circuit on Wednesday also overturned this injunction.
The Texas Attorney General’s Office said in a previous court filing that Barbee’s claims were moot, as state prison officials are allowing his spiritual adviser to touch him and pray aloud during his execution.
Also Tuesday, Hoyt denied a separate request by Barbee’s attorneys for an execution stay over claims the inmate’s right to avoid cruel and unusual punishment would be violated. His lawyers say Barbee has physical constraints that limit the movement of his shoulders and arms, and he would experience “intolerable pain and suffering” if he is executed in the normal manner with his arms outstretched on the gurney so that IV lines can be placed to deliver the lethal injection.
In a court filing from earlier this month, lawyers with the Texas Attorney General’s Office assured Hoyt that prison officials would make accommodations for Barbee and allow his arms to remain bent and if needed would find another location to place the IV lines.
On Monday, the Texas Board of Pardons and Paroles unanimously declined to commute Barbee’s death sentence to a lesser penalty or to grant a four-month reprieve.
Prosecutors said Barbee killed his ex-girlfriend and her son because he didn’t want his wife to know Underwood was seven months pregnant, presumably by him. DNA evidence later revealed Barbee wasn’t the father. Underwood owned a Fort Worth bagel shop, which was named after her son. She and her son were reported missing after failing to show up at a baby shower.
Barbee confessed to police he killed Underwood and her son but later recanted. Barbee said the confession was coerced. He has since maintained his innocent saying he was framed by his business partner.
His trial, including sentencing, took less than three days in February 2006.
Barbee received a lethal injection on the same day that Arizona executed Murray Hooper for killing two people during a home robbery in Phoenix on New Year’s Eve 1980. Hooper received a lethal injection Wednesday morning.
The executions come despite waning support in recent years for the death penalty across all political parties. About 6 in 10 Americans favor the death penalty, according to the General Social Survey, a major trends survey conducted by NORC at the University of Chicago. While a majority continue to express support for the death penalty, the share has declined steadily since the 1990s, when nearly three-quarters were in favor.
Barbee was the fifth inmate put to death this year in Texas. He was the last inmate scheduled for execution this year in the state.
So far, 15 people, including Barbee, have been executed across the U.S. in 2022, all by lethal injection. This year's total number of U.S. executions is already higher than last year's more than three-decades low of 11.