Justices struggle with religious rights of prisoners during executions

Disputes over a spiritual adviser's access in the execution chamber have divided the justices before, and on Tuesday they considered not only the case at hand but also others that will come before them, often just hours before scheduled executions, with inmates asking officials to recognize an array of religious liberty claims.

Justice Samuel Alito said that the court is looking for a "gold standard" that would satisfy an inmate's sincerely held religious belief but at the same time show deference to a state's interest in a zero-risk procedure.

But Alito expressed reservations about what he called an "unending stream" of litigants who will come to the court with new requests that will ultimately delay their executions and cause further anguish for a victim's family members.

Justice Clarence Thomas repeatedly referred to what he feared would be an attempt by other inmates to "game the system" by filing last-minute petitions.

Chief Justice John Roberts also noted that one inmate may want a pastor to lay hands on the foot, far from the drip line containing the lethal drugs, but the next might want to have a hand on the heart or the head.

Justice Brett Kavanaugh pointed out that a state has a compelling interest at the time of a "very fraught" situation to want the execution to be risk-free. "We are not in the execution room," he said at one point, later adding, "how can we question the state's compelling reasons?"

The case arose after the court in September agreed to block the execution of John Henry Ramirez while the justices considered his requests concerning his pastor. Currently in Texas, a pastor is permitted be in the chamber, but cannot speak up or physically touch the inmate.

A lawyer for Ramirez -- who is not arguing his innocence -- says that such a policy violates the inmate's rights under the federal Religious Land Use and Institutionalized Persons Act of 2000. The federal law provides that the government can't substantially burden an inmate's religious exercise unless the government can show that it is the least restrictive means to achieve the government's interest.

Ramirez was convicted of robbing and murdering Pablo Castro in 2004, stabbing him 29 times in a convenience store parking lot. He also robbed a second victim at knifepoint and fled to Mexico, evading arrest for three and a half years, according to the Texas Attorney General's office.

Ramirez has been ministered to by the Rev. Dana Moore of the Second Baptist Church in Ramirez's hometown of Corpus Christi, Texas, and he seeks to have Moore in the execution chamber, audibly praying and laying hands on him in the final moments of his life, because that process is deeply rooted in his faith.

Seth Kretzer, a lawyer for Ramirez, told the justices that the state can't articulate a specific security-related reason why Moore cannot interact with Ramirez and he noted that the prison had accommodated similar requests. He said that the state's own "history and practices" prove that Texas' restrictions on touch and audible prayer are "not the least restrictive means of furthering its proffered execution interests."

Texas Solicitor General Judd Stone stressed that Ramirez had been sentenced to death for "brutally murdering a father of nine for pocket change" and argued that he had asked only recently for his pastor to lay hands on him and speak up in prayer. He told the justices that it was time to "put an end to these tactics" that allow prisoners to delay their executions, sometimes for months and years, while legal challenges play out.

Stone said that Texas had changed its policies in part because of Supreme Court orders in recent cases.

Texas used to allow Christian and Muslim chaplains who were staff employees in the chamber. But in 2019, the Supreme Court suggested that the protocol discriminated against inmates who were neither Christian nor Muslim. Kavanaugh, writing alone, said that the Texas Department of Criminal Justice could resolve the issue by either allowing non-employee spiritual advisers into the chamber or forbidding all advisers. The Texas Department of Criminal Justice chose the latter, saying it was fearful that having an untrained individual in such a small space could have security implications. But by 2021 it amended its protocol to allow an inmate's chosen spiritual adviser to be inside the chamber .

A divided federal appeals court allowed Ramirez's execution to go forward, over the dissent of one judge who said that the execution should be blocked to give the courts time to consider the claims.

"What purpose is there for allowing a spiritual advisor, like a pastor, to be present in the execution chamber if that pastor is prohibited from attending to the spiritual needs of the condemned during the final moments of his life," Judge James Dennis of the 5th US Circuit Court of Appeals wrote in dissent.

The Biden administration weighed in in support of neither party but pointed out that because there is no execution date imminent now, the court should send the case back to the lower court so that the state might offer more evidence as to why it bars the audible prayer.

Last February, the Supreme Court blocked the execution of an Alabama inmate because the prison would not allow his spiritual adviser to be in the execution chamber.

Justice Elena Kagan, joined by her liberal colleagues, Justices Sonia Sotomayor and Stephen Breyer, as well as conservative Justice Amy Coney Barrett, wrote that while prison security was a compelling state interest, the prison could have ensured safety without barring all clergy. Thomas would have allowed the execution. Kavanaugh, joined by Roberts, would have also allowed the execution, but said that going forward "it seems apparent" that states should figure out ways to allow spiritual advisers in the execution room to avoid litigation delays.

Ramirez's case takes the issue a step further, concerning what a spiritual adviser is allowed to do while in the chamber.

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