‘The most fraught situation anyone can imagine’: Supreme Court hears case around prayer during executions

Texas allowed spiritual advisers into the execution room until 2019

Josh Marcus
San Francisco
Tuesday 09 November 2021 20:28
Woman who cut victim into 14 pieces escapes death penalty
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The fight over what kind of religious rights death row inmates have during their executions is not going anywhere, if arguments today at the US Supreme Court in a Texas lawsuit are any indication.

On Tuesday morning, oral argument began Ramirez v. Collier, a suit from Texas death row inmate John Henry Ramirez. Ramirez, convicted of the gruesome 2004 murder of convenience store worker Pablo Castro, argues that a 2021 Texas prison policy, which doesn’t allow spiritual advisers in the execution chamber to vocally pray over inmates or touch them, is infringing on his statutorily and constitutionally protected religious rights.

The state has argued, and lower courts have agreed, that Texas has a compelling security interest in keeping faith leaders from getting too close to individuals during their death, and that Ramirez is raising last-minute objections to once again delay an execution that has been postponed three times.

During Tuesday’s arguments, the Justices on the conservative-leaning court appeared unmoved by arguments that the federal government under Donald Trump and others, various states, and even Texas during past eras, have all allowed religious advisers to touch and vocally pray over the condemned.

Instead, they seemed apprehensive that if Ramirez is victorious, it could lead down a slippery slope of ever-more permissive religious accommodations during executions.

“We can look forward to an unending stream of variations,” Justice Samuel Alito said during a question to Ramirez’s attorney, Seth Kretzer, on whether it was appropriate to compare death row practices between states with differing levels of religious accommodation. “What’s going to happen when the next prisoner says that I have a religious belief that he should touch my knee, he should hold my hand, he should put his hand over my heart?... We have to go through the whole human anatomy with a series of cases?”

Under a federal law known as the Religious Land Use and Institutionalized Persons Act, states must have a compelling interest for limiting prisoners’ religious exercise. Justices like the Trump-appointed Brett Kavanaugh questioned whether it was the high court’s place to second-guess Texas when it said it had a security interest in keeping pastors from getting too close during the execution process, which he called “about the most fraught situation anyone can imagine.”

“I don’t know how we, sitting here, we’re not in the execution room, we don’t know, how can we question the state’s interest in keeping the risk of a problem close to zero?” Mr Kavanaugh asked.

As both the court’s more liberal Justices pointed out, and Ramirez’s lawyers have argued, the state of Texas, home to the country’s most prolific death chamber, carried out hundreds of executions where religious advisers prayed out loud and touched inmates on their deathbed.

“How many of those did the audibility and the physical touching create the execution going astray, are you aware of any?” Justice Stephen Breyer asked Texas solicitor general Judd Stone on Tuesday, to which he said none, though he noted those were all state chaplains allowed in the room, rather than outside spiritual advisors. “So we have experience, and there’s never been a problem,” Mr Breyer added.

That only changed in 2019, when the Supreme Court blocked the execution of another Texas inmate, finding that the state’s policy of only allowing government employed chaplains in during executions violated the rights of a Buddhist inmate, because only Christian and Muslim spiritual advisers were available. In response, the state chose to first ban all religious advisers from the execution room, before later allowing them in with restrictions on vocal prayer and touch in 2021. This succession of changes, gave rise to Ramirez’s lawsuit.

“It’s not for us to worry about the individualized treatment,” Justice Sonia Sotomayor said during Tuesday’s arguments. “Congress has told us that petitioners are entitled to it. Prisons have to work in good faith to accommodate those things ... That’s not good faith,  is what you’re saying,” she asked Ramirez’s legal team of the series of shifting rules.

Justice Amy Coney Barrett, appointed by the Trump administration and known for her strong personal Christian faith, questioned whether allowing Texas to keep prayer out of the execution room could set a worrying standard of prisons blocking religious exercise under the guise of maximum security.

“If they said we want the risk of prison rioting or fighting to be zero per cent, that would permit the prison to say there can never be any kind of prayer service or gathering,” she said, a line of action which the lawyer for Texas, Mr Stone, conceded could raise worries about “a license for the state to just reject religious claims.”

Elena Kagan, appointed by the Obama administration, brought up the 2015 Supreme Court case Holt v. Hobbs, where the court unanimously decided Arkansas’s prison personal grooming policy infringed on the rights of a man who wanted to grow a beard in accordance with his Muslim faith. She argued that even though Arkansas officials had a legitimate security reason to try and limit the size of prisoners’ beards because they could be used to smuggle in contraband, the court was able to take a balanced approach between security and religious liberty.

“In all of that, there is an appropriate level of deference given to prison officials, but there’s an appropriate level of respect given to the inmates’ religious commitment, as commanded by Congress,” she said.

Robert Wiley, a pastor who prayed over Alabama inmate Willie B Smith this year during his execution, told The Independent it’s important that even convicted killers like Smith and Ramirez get a chance to fully exercise their religion in their final moments.

"There’s no excuse for what he did. He never made any excuses about it,” Mr Wiley said of Smith, but added that, “I believe in redemption. Everyone has the right to repentance. In brother Willie’s case, he had been there almost 30 years. I could truly say that he wasn’t the same person when he was executed as when he was first convicted. He was a totally changed individual. It was the genuine article. He’s one of the most spiritual individuals that I’ve come to know.”

Full-throated prayer with an inmate before their execution is “one of the oldest religious freedom rights known to history and the Christian tradition,” The Texas Catholic Conference of Bishops and US Conference of Catholic Bishops argued in an amicus brief submitted ahead of oral arguments in the Ramirez case, right that both requires and has always featured touch and speech. The groups, representing the state and national leaders in the Catholic church, argue against capital punishment as a whole, but say if a state must go forward with executions, they should do so allowing the full practice of these rights.

“It represents a judgment by fallible human beings that a person is beyond redemption,” the organisations wrote. “That is a judgment the Catholic Church rejects. The state should act with justice by sparing Ramirez’s life. If it will not, it should allow him to seek the mercy of God at the moment of his death.”

The Independent and the nonprofit Responsible Business Initiative for Justice (RBIJ) have launched a joint campaign calling for an end to the death penalty in the US. The RBIJ has attracted more than 150 well-known signatories to their Business Leaders Declaration Against the Death Penalty - with The Independent as the latest on the list. We join high-profile executives like Ariana Huffington, Facebook’s Sheryl Sandberg, and Virgin Group founder Sir Richard Branson as part of this initiative and are making a pledge to highlight the injustices of the death penalty in our coverage.

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