The Supreme Court tries to clean up a huge death penalty mess it has created


Dunn v. Ray (2019) is the kind of Supreme Court decision a comic book supervillain could write. Widely denounced, also by prominent conservators, when it was handed down, Ray believed that a Muslim detainee in Alabama could be executed without the presence of his imam, even though the state allowed Christian detainees to have a spiritual advisor present during their execution.

As judge Elena Kagan, one of the “clearest commanders” of the Constitution, wrote in dissent[s]”It is that” one religious denomination cannot be officially preferred to another. “But that’s exactly what the court has allowed in Ray.

After witnessing the bipartisan backlash to this decision, David French of the conservative National Review has labeled it as “gross violation of the First Amendment“- the court eventually began to sneak away from it. In Murphy v. Necklace (2019), decided only a few months later Ray, the court temporarily blocked the execution of a Buddhist detainee in Texas, unless that state “allows Murphy’s Buddhist spiritual advisor or another Buddhist reverend chosen by the state to accompany Murphy to the execution chamber during the execution.”

More recently, in Dunn v. blacksmith (2021) the court seemed to suggest that all people who are executed, regardless of their faith, must be able to have a spiritual counselor present. Although there was no majority opinion in blacksmith, even some of the dissenting judges admitted they were beaten. “It seems clear that states that want to avoid months or years of delays in litigation,” Judge Brett Kavanaugh wrote in a brief dissenting opinion, “should Find a way to allow spiritual counselors to enter the execution room. “

Yet while the court’s treatment of Domineque Ray, the inmate in Ray, appears to be discredited, the Court has yet to resolve several open points left by that decision, including questions about what procedural barriers can be erected between death row inmates and their spiritual counselors and questions about what such counselors can do to comfort a dying prisoner.

These issues are front and center in Ramirez v. Necklace, which will be discussed in front of the judges on Tuesday. Texas allows John Ramirez, the death row inmate at the center of this case, to have his pastor present during his execution. But the state does not allow the pastor to lay hands on Ramirez or pray audibly on him.

The fundamental question in Ramirez, in other words, it’s whether a death row inmate is allowed to actually receive spiritual comfort during his execution – or whether Ramirez’s pastor simply has to stand there, doing little to alleviate a dying man’s final moments.

Ramirez wants this to be a case of religious freedom. Texas wants it to be a case on trial.

Federal judges have a macabre duty. Whenever an execution approaches, the judges are inundated with motions from defending capital attorneys trying to save their client’s life – or at least ensure that the execution is carried out in the most humane way possible.

Since the Supreme Court is the nation’s court of last resort, many of these disputes eventually reach the judges. And so judges are faced with a steady stream of emergency death penalty cases, often with only a few hours to review them.

The burden of spending years deciding who lives and who dies weighs differently on the different judges. Some proclaim, as Judge Harry Blackmun did a few months before his retirement in 1994, that “no longer fumble with the death machine. “Blackmun – and more recently, Judges Ruth Bader Ginsburg and Stephen Breyer – concluded, after decades of last-minute capital appeals hearings, that the death penalty is unconstitutional.

“The factual, legal and moral error gives us a system that we know is to mistakenly kill some defendants,” Blackmun wrote.

In Ray, five conservative judges took the opposite approach. They attempted to spark the wave of urgent death penalty motions in the first place, by preventing many inmates from filing them. Domineque Ray’s mistake, these judges have affirmed what he waited too long bring a lawsuit by insisting that his imam be present at his execution.

This was a singularly unconvincing claim – so unconvincing that many observers accused the Court of offering a pretext excuse me deny relief to a Muslim. Ray had filed his lawsuit only five days after a prison warden formally denied Ray’s request to be consoled by his imam during his execution. The Court’s explanation for its decision was literally unbelievable.

No doubt with the decision of the court in Ray in mind, Texas spends the lion’s share of its people letter in Ramirez accusing Ramirez of making slight procedural errors that will presumably condemn his case. The brief employs an entire subsection, for example, arguing that Ramirez should lose because, when he filed a complaint asking to have his pastor present at his execution, he did not specifically state that the pastor should be allowed to speak.

In fact, Texas spends only a dozen pages of a 62 page letter arguing that its policy of banning a death row inmate’s spiritual adviser from speaking or touching the inmate may be justified by federal civil rights law.

The specific law in question in this case is the Law on religious land use and institutionalized persons. It prohibits prisons from imposing a “substantial burden” on an inmate’s faith, unless that burden is “in support of compelling government interest” and the prison uses “the least restrictive means to promote such compelling government interest.”

This should be a difficult burden for Texas to bear in this case. Incidentally, as Ramirez’s lawyers discuss in your letterUntil recently, Texas allowed pastors to touch and talk to death row inmates as they were executed. And also quotes from a book, written by a former Texas criminal justice official, chronicling past executions in which chaplains put their hands on the knee of the dying man. So it is difficult for Texas to argue that its current policy uses the “least restrictive” method of executing prisoners, when it had a less restrictive policy.

To the extent that Texas even tries to defend its current policy, much of its defense is based on unlikely scenarios that could only occur if the Texas death chamber were run by incompetent people of rank. Texas argues, for example, that Ramirez’s pastor must not be able to touch him “in the event that the inmate has escaped his restrictions, sneaked a weapon or otherwise became a threat in the chamber.” The fear is that “a spiritual counselor who is close enough to touch the detainee would be in danger or able to assist the detainee.”

Texas, in other words, offers only a weak defense of its current policy. He bases most of his argument on the hope that the majority of the judges will repeat their performance in Ray and rely on a procedural motive to deny Ramirez the relief he seeks.

So how could this case come about?

The case of pessimism, if you are Ramirez’s attorney, is quite simple. In blacksmith, only the three liberals, plus conservative justice Amy Coney Barrett, have taken a clear stand in favor of religious freedom on death row. Roberts, Thomas and Kavanaugh were all dissenters. This means that Judge Samuel Alito or Judge Neil Gorsuch (or perhaps both) silently voted in favor of the detainee in blacksmith.

But Alito and Gorsuch are both thehard supporters of the death penalty. If you are a capital solicitor and you count on their vote, you are usually in trouble.

That said, there are also a few reasons Ramirez’s lawyers are optimistic that they can get five votes.

A notable difference between Ramirez Other Ray and this Ray arose on the Court shadow board, a mix of emergency motions and other urgent requests that are typically decided in a short time without a full briefing or oral argument. Ramirezon the other hand, he will be heard in the regular register of the Court and will receive an oral defense.

This distinction is important because the Supreme Court usually reserves the full briefing and argumentation for cases which have divided the judges of the lower courts or which concern unusually important matters of federal law. It is unlikely that the court would have agreed to hear Ramirezif he thought the correct answer resulted in a minor procedural error which is unique to this case only.

While blacksmith did not produce a majority opinion, four judges – including Barrett – joined in an opinion from Kagan which plots a possible path to follow in Ramirez. Kagan argued that states with restrictive policies governing spiritual counselors can simply adopt the practices used in other states. “In the past year, the federal government has conducted more than 10 executions in which the prisoner’s chosen clergy participated,” Kagan noted – the implication being that states could copy federal government procedures and do the same.

A state that fears that a particular member of the clergy may present a security risk “can do a background check of the minister; can interview him and his associates [and] he can seek a penalty-covered commitment that will obey all the rules, “Kagan wrote. But he cannot root his policy in speculative fears that a pastor could help an inmate stage a daring escape in the midst of his execution. .

So while the outcome of this lawsuit is not entirely certain, Ramirez has good reason to hope that, in his final moments, he will receive spiritual comfort.


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