Supreme Court Grapples With Religious Rights in Execution Chamber

(Bloomberg) -- The U.S. Supreme Court grappled with the religious rights of death-row inmates in the execution chamber, as the justices weighed a request by a Texas prisoner to have his Baptist pastor pray aloud and place his hands on the man during the lethal injection.

Hearing arguments in Washington, the justices suggested they might kick at least part of the case back to a lower court to balance inmate John Henry Ramirez’s religious needs with the security interests of the Texas prison where he will be executed.

Some justices typically solicitous of religious rights voiced concern that a decision backing Ramirez would give inmates new grounds to delay their executions. Justice Clarence Thomas asked Ramirez’s lawyer about inmates “gaming the system,” while Justice Samuel Alito said the court would probably see a flurry of last-minute filings by death-row inmates.

“What you have said so far suggests to me that we can look forward to an unending stream of variations,” Alito told Ramirez’s lawyer, Seth Kretzer.

Other justices said last-minute filings were avoidable if states lay out their death-chamber guidelines early enough that inmates can lodge objections well before the execution date -- something Ramirez says Texas didn’t do in his case.

“They can say what it is early and tell people, ‘If you have an objection, come in and tell us what you need within a certain amount of time,’ correct?” Justice Sonia Sotomayor asked Kretzer.

Death-row inmates don’t normally fare well at the conservative-dominated Supreme Court. But the results have been more mixed as religious rights in the death chamber has emerged as an issue in recent years, with some conservatives at times joining with the three Democratic appointees to back inmates.

Baptist Pastor

Ramirez contends the state is violating the U.S. Religious Land Use and Institutionalized Persons Act, which protects the religious rights of people in prisons. In a 2015 case, the Supreme Court said that law imposes an “exceptionally demanding” test on prisons to justify any rule that curtails religious rights.

Texas says it will allow Dana Moore, a Baptist pastor, to accompany Ramirez into the death chamber but says he will have to remain silent and refrain from touching the inmate. Texas Solicitor General Judd Stone said Tuesday the state’s rules are needed to maintain security and ensure the inmate doesn’t experience pain and suffering.

Justice Brett Kavanaugh suggested he was sympathetic with Texas’ desire to eliminate as much risk as possible that an execution might go awry.

“Why isn’t that a compelling interest when the state says we want the risk to be as close to zero as possible and if we allow touching and the like, the risk increases?” he asked Kretzer.

But Justice Amy Coney Barrett indicated she didn’t see the elimination of all risk as the right measuring stick, saying that if prisons could do that, they would be allowed to bar worship services.

“I’m just wondering if it’s legitimate to define it as trying to get to 0% risk,” Barrett said. “If they said we want the risk of prison rioting or fighting to be 0%, that would permit the prison to say there can never be any kind of prayer service or gathering.”

In February, Barrett joined the court’s three liberals in voting to block the execution of an Alabama man unless he could have his pastor alongside him. At least one other conservative also joined the liberals, though the court didn’t provide the full voting breakdown.

Federal Executions

Several justices said Tuesday they were interested in the experiences of the federal government, which executed 13 people during the last year and a half of the Trump administration. Justice Department lawyer Eric Feigin said that in 11 of those cases, a spiritual adviser was in the death chamber and either prayed aloud or spoke with the prisoner.

But Feigin also said that in only one case did the adviser touch the inmate, and that took place before the lethal drug was administered. He said the U.S. Bureau of Prisons would have “very, very substantial” concerns about physical contact while the drug is being administered because of the risk of disruption to the IV lines.

Ramirez was convicted of stabbing Pablo Castro 29 times, and taking the $1.25 he had his pocket, outside the Corpus Christi convenience store where the victim worked in 2004.

The justices on Sept. 8 took the unusual step of blocking Ramirez’s execution and scheduling arguments on a fast-track basis.

The case is Ramirez v. Collier, U.S., 21-5592.

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