BY JOLIE MCCULLOUGH NOV. 9, 2021
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The U.S. Supreme Court debated Tuesday whether the pastor of a Texas prisoner should be able to touch or audibly pray over him as the prisoner is executed. The justices largely focused on potential security risks, and the likelihood that a ruling for the prisoner could increase their own workload.
“If we rule in your favor here, this is going to be a heavy part of our docket for years to come,” Justice Brett Kavanaugh, who previously penned the court’s sole opinion against religious limitations in Texas executions, told the prisoner’s attorney.
Throughout more than 90 minutes of arguments, the justices tried to find a “gold standard” execution policy balancing a prisoner’s federally protected religious rights with the small possibility of a non-prison chaplain somehow interfering with an execution. They also hoped to avoid prisoners’ final religious requests resulting in a constant need for court intervention.
Moreover, several justices seemed at a loss to factor in how prison officials and courts in the future would determine if prisoners’ intentions were legitimate, or simply stall tactics. Justice Clarence Thomas, often deemed the court’s most conservative member, quickly began questioning by asking if the prisoner could be “gaming the system.”
The question of religious rights in the death chamber was brought before the high court by John Ramirez, a 37-year-old sentenced to die for robbing and fatally stabbing a Corpus Christi store clerk in 2004. This summer, with an execution date set, Ramirez asked if his pastor could lay hands on him and pray over him as he died. Texas prison officials denied the request, claiming it would involve security risks — a claim balked at by Ramirez’s attorney, Seth Kretzer.
“There is not a single example in history where any spiritual adviser has ever interrupted [an execution],” Kretzer told the justices Tuesday.
In September, hours after Ramirez was scheduled to die, the justices stopped his execution and asked the Texas prison system and Kretzer to bring their arguments to Washington, D.C. It was the latest iteration in a yearslong back-and-forth between the Texas prison system and the Supreme Court on how to equally and fairly accommodate condemned prisoners’ religious liberties, which are protected by federal statute.
For decades, the Texas Department of Criminal Justice allowed its staff chaplains to rest a hand on a prisoner’s leg and pray quietly during an execution, but the agency only employed Christian and Muslim advisers. After multiple court orders halting executions over concerns of religious discrimination and violation of liberties, the department’s policy now allows prisoners’ personal religious advisers to be in the death chamber — provided they clear a background check and orientation — but they can’t touch the prisoners or speak.
On Tuesday, the court scrutinized that policy, with conservative justices asking the large majority of questions. It’s unclear when the court will make a ruling, though the quickly scheduled hearing before the justices may indicate a relatively speedy turnaround time by the six conservative and three liberal justices. Pending a determination in the case, multiple executions in Texas have been postponed.
Perhaps most vocal Tuesday was Kavanaugh, who in 2019 wrote an opinion against Texas’ longstanding policy to allow only staff chaplains in the death chamber. After a Buddhist prisoner complained of discrimination because an adviser of his faith was not being allowed in the execution room, the Catholic justice told Texas prison officials they could either allow prisoners of all faiths to have religious advisers in the chamber or allow none, but they couldn’t have different practices for different religions.
However, when TDCJ quickly decided to follow Kavanaugh’s advice and allow no chaplains in, a prisoner set for execution in 2020 argued the absence of a spiritual adviser violated his religious freedoms. The high court again asked lower courts to gauge how much of a security risk outside chaplains would present, and Texas again changed its policy to its current one.
Throughout the arguments, Kavanaugh expressed concerns over how to gauge a prisoner’s sincerity, how to avoid endless litigation and, at the crux of the case, how to balance security risks with religious liberties.
“There’s another human being … in the execution room, about the most fraught situation anyone can imagine, especially if the person is by definition close to the inmate, spiritually, friends. And they’re about to die and be put to death,” Kavanaugh said. “The idea that we can predict how another human being will react in that situation … I just don’t know.”
Kretzer argued that with no history of problems with state-employed chaplains in Texas or non-prison chaplains in other states and in federal executions, the risk is incredibly low. He added that federal law does not require zero risk when it comes to accommodating prisoners’ religious beliefs. Texas Solicitor General Judd Stone acknowledged that the risk is small, but the potential harm is enormous.
“It’s something we would anticipate would have a low likelihood of occurring, it would just be catastrophic if it did,” Stone said.
Seeking a long-term solution, several conservative justices questioned whether following federal policies, which recently allowed spiritual advisers in the execution room, would help. Kretzer has argued that the state should follow Alabama, which recently announced it would allow spiritual advisers in the execution room to anoint prisoners’ heads with oil, pray with them and hold their hands as the execution begins.
Kavanaugh and Justice Samuel Alito seemed more interested in the federal process, which was detailed by Eric Feigin, a U.S. deputy solicitor general. Feigin said in 11 executions the federal government carried out under former President Donald Trump, advisers in the chamber were allowed to pray at some point, and one adviser was allowed to touch a prisoner, though only before lethal drugs began to flow.
Stone still largely objected. He argued federal procedures are different because the execution room is larger than in Texas, though outside chaplains are still allowed to be present in the room in Texas executions under current policy.
Liberal Justice Sonia Sotomayor seemed skeptical of not allowing chaplains to speak because officials need to listen to medical equipment, asking Stone if there were any rules saying prisoners can’t pray aloud as they are injected with lethal drugs.
When he confirmed there were no such rules, she quickly replied, “OK, so you tolerate their noise.”
Aside from risk, several justices were wary that a ruling in favor of touch and prayer as Ramirez requested would open the court to, as Alito referred to it, an “unending stream of variations.” Chief Justice John Roberts questioned whether a new court ruling would be required for an inmate who, instead of asking for his foot to be touched, wanted his heart to be touched, or wanted multiple advisers in the room. Sotomayor later noted that the federal law that protects prisoner’s religious rights, “whether we like it or not, requires the state to address each individual person’s need.”
But Alito noted he was concerned that the requests would routinely be made at the last minute before an execution. Kretzer responded that, for Ramirez, the state’s delay in responding to complaints and lack of clarity in its procedure were the causes of late filings. Ramirez has claimed he did not know his pastor would not be allowed to touch him or pray over him under the new policy until Kretzer asked prison officials this summer.
“If the state is so worried about these things coming up in the last minute, all they have to do is tell us what the actual rules are,” Kretzer said.
The late court filings also were brought up by justices who were concerned about how to deal with potential delay tactics by prisoners set to die. Roberts and Kavanaugh repeatedly questioned how a judge could be asked to determine a prisoner’s sincerity. Stone countered that people who seek relief at the last moment, without a history of religious beliefs, wouldn’t be credible, but Roberts pushed back.
“I suspect impending death focuses people’s concerns on religion in a way they may not have been before,” Roberts said. “Maybe he’s not sincere, but how do you tell?”