Conservative Supreme Court justices expressed skepticism Tuesday about a Texas death row inmate’s demand that his pastor be allowed to pray out loud and touch him during his execution.
Executions in Texas, the nation’s busiest death penalty state, have been delayed while the court considers the question. The outcome won’t take anyone off death row but could make clear what religious accommodations officials must make for inmates who are being put to death.
Members of the court’s conservative majority suggested during arguments Tuesday that requiring Texas to grant the inmate’s request could lead to a string of cases asking for other accommodations. A lawyer for the inmate said the man would be content to have his pastor touch his foot during his execution, but justices questioned what requests might come next.
“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. He should be able to put his hand on my head. We’re going to have to go through the whole human anatomy with a series of cases,” Justice Samuel Alito said.
Chief Justice John Roberts and Justice Brett Kavanaugh also expressed concerns about what a ruling for the inmate would mean for requests in the future, with Kavanaugh asking whether all states would have to offer equivalent accommodations.
What if, he asked, one state “allows bread and wine in the execution room right before the execution” or allows the minister to “hug the inmate.” Do other states have to do the same?
The case before the justices involves John Henry Ramirez, who is on death row for killing a Corpus Christi convenience store worker during a 2004 robbery. Ramirez stabbed the man, Pablo Castro, 29 times and robbed him of $1.25.
Ramirez’s lawyers sued after Texas said it would not allow his minister to pray audibly and touch him as he is being given a lethal injection. Lower courts had sided with Texas, but the Supreme Court halted his Sept. 8 execution to hear his case.
Texas says an inmate’s spiritual adviser may pray with and counsel him until he is taken into the execution chamber and restrained on a gurney. But Texas says that after that, while the spiritual adviser is nearby, he can’t speak to or touch the inmate.
“An outsider touching the inmate during lethal injection poses an unacceptable risk to the security, integrity, and solemnity of the execution,” Texas told the justices in briefs filed with the court.
Arguing for Texas, state Solicitor General Judd Stone II also told the justices that Ramirez’s request is just an attempt to delay his execution. Justice Clarence Thomas seemed to agree, asking what the justices should do if they believe Ramirez has “changed his requests a number of times” and “filed last minute complaints” and “if we assume that’s some indication of gaming the system.”
Ramirez’s attorney Seth Kretzer told Thomas that is not the case. He has argued a federal law that protects the religious rights of prisoners requires the state to accommodate Ramirez’s requests.
The court’s three liberal justices seemed more open to Ramirez’s arguments, with Justice Sonia Sotomayor suggesting that where Ramirez wants his spiritual adviser to stand is far away from the restraints Texas uses or IV lines for the lethal execution drug. And both Justices Elena Kagan and Stephen Breyer noted Texas had allowed chaplains to touch inmates in the past.
The justices also heard from a lawyer for the Biden administration about the experience of the federal government in carrying out a number of executions recently. Under the Trump administration the federal government resumed executions for the first time in 17 years, carrying out 13 of them at the federal execution chamber in Terre Haute. During 11 of those executions, which also made news for likely acting as coronavirus superspreader events, religious advisers were present and sometimes prayed aloud with inmates. In at least one case there was brief physical contact before the administration of the lethal injection drug.
Arguing for the government, Eric Feigin told the justices that the federal government believes Texas has a strong argument for not allowing a spiritual adviser to touch an inmate during the administration of the lethal injection drug itself. He said federal officials had not allowed that and it would likely give them “very, very substantial concerns.”
He also said it’s hard to know how a spiritual adviser might react during that time. That person could faint or stumble and jostle the IV lines, he said. “Anything going wrong here would be catastrophic,” he said.
Feigin also said spiritual advisers stood about 9 feet away as the lethal injection drug was being administered during recent executions. And he noted that the federal death chamber is about twice the size of the one in Texas.
As the court has grown more conservative in recent years it has been less open to last-minute challenges to death sentences. But issues surrounding ministers in the death chamber have been one area where the justices have had some openness to stopping an execution. In 2019, two inmates asked the justices to halt their executions over states’ refusal to allow their spiritual advisers in the execution chamber. Wrestling with the issue, the high court let one execution go forward but blocked the other, of Texas inmate Patrick Murphy.
At the time of Murphy’s scheduled execution, Texas allowed state-employed religious advisers to be present in the execution chamber but only employed Christian and Muslim advisers, not anyone who was Buddhist, Murphy’s faith. Justice Kavanaugh wrote that Murphy wasn’t being treated equally.
Texas responded by barring all clergy from the execution chamber, but inmates filed additional lawsuits. Texas ultimately changed its policy in 2021 to allow both state-employed chaplains and outside spiritual advisers who satisfy certain screening requirements to go into the execution chamber.
The current Supreme Court case has delayed the final two executions scheduled this year in Texas.
Last month judges rescheduled the executions of Kosoul Chanthakoummane, who was to die Wednesday, and Ramiro Gonzales, who was set for Nov. 17. Gonzales’ new execution date is July 13 of next year, while Chanthakoummane’s is Aug. 17.
Approximately 2,500 people are on death rows nationwide, according to the Death Penalty Information Center. A total of 17 people were put to death by five states and the federal government last year. The Biden administration announced earlier this year it would halt federal executions while the Justice Department conducts a review of its policies and procedures. Still, just last month the administration argued before the Supreme Court for the reinstatement of the death penalty in the case of convicted Boston Marathon bomber Dzhokhar Tsarnaev.