Condemned inmates in Texas and Alabama who want a spiritual adviser with them when they are put to death are challenging prison policies that bar clergy from the execution chamber.
Lawyers for the prisoners say the policies violate their free exercise of religion under the First Amendment and the Religious Land Use and Institutionalized Persons Act. The act prohibits regulations that impose a “substantial burden” on the religious exercise of persons confined to institutions.
Prison officials counter that the policies were adopted for safety reasons and are not discriminatory.
Two of the inmates — Patrick Henry Murphy Jr., 58, a Buddhist, and Ruben Gutierrez, 43, a Catholic, both on Texas’ death row — were granted stays of execution by the U.S. Supreme Court after raising the spiritual adviser issue.
But in an Alabama case, the Supreme Court allowed to go forward the execution of Domineque Hakim Marcelle Ray, a Muslim who was challenging a corrections policy that allowed only the prison’s Christian chaplain to be inside the execution chamber. Ray, 42, wanted to have an imam with him in the final moments of his life, but the court indicated his request was untimely.
Another Muslim inmate on Alabama’s death row, Charles L. Burton Jr., brought the same challenge in a suit filed in federal court a few months after Ray’s execution. He wants to make sure his request is granted in time to avoid what happened with Ray.
On March 28, 2019, the U.S. Supreme Court blocked the execution of Murphy, who was scheduled to be put to death that day. Murphy was one of the Texas Seven gang, escaped prisoners who fatally shot Irving police Officer Aubrey Hawkins in 2000 while they were on the run.
Murphy had claimed discrimination after his request that a Buddhist priest be with him was denied. Only prison chaplains, all of whom were either Christian or Muslim, were allowed in the execution room. Other clergy had to remain in the viewing room.
Justice Brett Kavanaugh, who was in the 7-2 majority in favor of the reprieve, wrote that the U.S. Constitution prohibits “denominational discrimination.” Texas had two options: Either allow all inmates to have a religious adviser of their choice in the chamber; or allow none to have an adviser in the chamber.
“In any event, the choice of remedy going forward is up to the state,” he said.
The Texas Department of Criminal Justice then changed its policy to ban all chaplains of any religion from the execution chamber.
Murphy continues to challenge the policy as a violation of his religious rights and won another stay of execution in November 2019, this one from a U.S. District Court.
Chris Pagliarella, counsel with the Becket Fund for Religious Liberty, said all Americans, regardless of their status, deserve protection of their constitutional right to the ancient practice of comfort of clergy if it can be done safely. The nonprofit Becket filed a friend-of-the-court brief in support of Murphy’s request for a spiritual adviser in the execution chamber.
“This is not about whether to preclude this person’s execution,” Pagliarella said. “What it is about is the right to the comfort of clergy at the moment of death.”
Stay of execution
Texas’ revised policy was challenged this year by Gutierrez, who was to receive a lethal injection at the state penitentiary in Huntsville on June 16. Gutierrez wanted a prison-employed Christian chaplain in the execution chamber but his request was denied.
An hour before the scheduled start of the execution, the U.S. Supreme Court granted a stay.
“The District Court should promptly determine, based on whatever evidence the parties provide, whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution,” the order says.
Gutierrez was sentenced to die for his participation in the 1998 robbery and slaying of Escolastica Harrison, who had about $600,000 hidden in her trailer at the Brownsville mobile home park she owned. The 85-year-old woman was beaten and stabbed.
In a brief opposing the request for a stay, TDCJ officials deny any religious discrimination and say the state’s policy was enacted for a secular purpose — the prison system’s “obvious and compelling interest in security.”
“To grant a stay would be to grant every prisoner an inalienable right to demand his preferred spiritual adviser’s access to the execution room,” the TDCJ brief says. “And it would impose on every state’s prison system the obligation to accommodate any such request, notwithstanding any logistical or practical limitations.”
The brief also says Gutierrez can talk with a prison chaplain in the days and hours before his execution. A chaplain and an approved outside spiritual adviser can visit an inmate from 3 to 4 p.m. on the day of the execution (under Texas law, executions are carried out at or after 6 p.m.) and are allowed in the witness room.
“He will have significant opportunities to exercise his religious rite with a chaplain shortly before his execution, unlike 85-year-old Escolastica Harrison,” the TDCJ brief says.
The meetings are conducted through multiple layers of wire mesh that make it difficult to see the condemned, let alone touch him, according to Gutierrez’s lawyers. That visit is no substitute for the presence of a chaplain during the execution, they contend.
“The sense of humanity that goes along with the end of life is so important,” Shawn Nolan, one of Gutierrez’s lawyers, said.
Nolan also said the argument that having a clergy member by the side of a condemned prisoner is a safety issue has not been borne out by history. The state has allowed chaplains in the execution chamber for many years and there have never been any incidents, he said.
In a friend-of-the-court brief, the Texas Catholic Conference of Bishops says Gutierrez sincerely believes a Christian chaplain’s presence at the moment of death will help him reach heaven.
“TDCJ is not merely making Gutierrez’s religious practice more difficult,” the brief says. “It is placing a direct, irrevocable prohibition on his sincere religious exercise, and at the most critical time for such exercise — when the soul is departing this world for the next.”
Request for imam
In Alabama, Ray was put to death for the 1995 murder of 15-year-old Tiffany Harville in Selma. Ray also had been convicted in a separate trial of the 1994 slaying of teenage brothers Reinhard and Earnest Mabins and sentenced to life in prison for those crimes.
In a 5-4 ruling, the Supreme Court lifted a stay granted by a federal appeals court. The majority noted the state set the execution date in November 2018 and Ray waited until Jan. 28, 2019, to challenge the policy. The dissenters, though, pointed out the warden denied the request for an imam just five days before then.
Burton is fighting a policy requiring the presence of the prison chaplain, who is a mainline Protestant Christian, in the execution chamber and excluding religious advisers of the faiths of other death row inmates. The Alabama Department of Corrections refused his request for an imam to be with him at the Holman Correctional Facility in Atmore, he says in his suit, which is pending.
“The ADOC has done so despite having cleared religious leaders from other faiths to visit Holman and spend time with death-sentenced inmates without a physical barrier, and despite the demonstrated feasibility of having a religious adviser in the execution chamber at the time of execution, as evidenced by the prison chaplain’s attendance at virtually every execution at Holman over the past 20 years,” the suit says.
Burton was found guilty of a 1991 murder committed during the robbery of occupants of an auto parts store. A customer, Doug Battle, was fatally shot by one of the other five men participating in the crime.
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