Texas is preparing to execute a man on Wednesday evening for killing his pregnant ex-girlfriend and her 7-year-old son.
Stephen Dale Barbee, 55, is scheduled to receive a lethal injection at the state penitentiary in Huntsville at 6 p.m. CT.
Lisa Underwood, 34, and her son, Jayden were both suffocated at their home in Fort Worth and later found buried in a shallow grave in nearby Denton County. Barbee was sentenced to death in 2006.
Barbee confessed to police that he killed Underwood and her son, saying he feared Underwood would tell his wife that he was the father of her unborn child. He later recanted, saying the confession was coerced, and has since maintained his innocence.
Barbee's attorneys have asked the U.S. Supreme Court to halt his execution, arguing that his religious rights are being violated because the Texas Department of Criminal Justice (TDCJ) has yet to create a written policy following a high court ruling earlier this year.
That ruling said states must accommodate inmates who wish to have their faith leaders pray aloud and even touch them during their executions.
The TDCJ said in March that it did not plan to formally update its policy and that such requests would be reviewed on a case-by-case basis.
U.S. District Judge Kenneth Hoyt sided with Barbee earlier this month, issuing a preliminary injunction saying the state could only execute Barbee after it publishes "a clear policy" 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.
Hoyt issued a new injunction on Tuesday that focused specifically on protecting Barbee's rights. The Texas Attorney General's Office immediately appealed to the 5th Circuit, which has to make a ruling before the Supreme Court can take up the issue.
"We are hopeful that the district court's well-reasoned opinions on the need for a published policy that protects the religious rights of Mr. Barbee and other inmates facing execution will be upheld," Barbee's attorney Richard Ellis told Newsweek on Wednesday.
Newsweek reached out to the TDCJ for comment.
The Texas Board of Pardons and Paroles on Monday unanimously voted against commuting Barbee's death sentence to a lesser penalty or granting a four-month reprieve.
Barbee's execution is scheduled on the same day that Arizona plans to put Murray Hooper to death for killing two people on New Year's Eve in 1980.
If Barbee's execution goes ahead, he will become the fifth inmate put to death this year in Texas.
The state executed Carl Wayne Buntion in April, Kosoul Chanthakoummane in August, John Ramirez in October and Tracy Beatty on November 9.
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