The Austin Chronicle

Death Watch: SCOTUS Hears Texas Spiritual-Advisor Case

A prayer for the dying

By Brant Bingamon, November 12, 2021, News

Seth Kretzer stood before the U.S. Supreme Court on Nov. 9 and reiterated the arguments that led SCOTUS to cancel the execution of his client, John Henry Ramirez, two months earlier: Death row inmates have a Constitutional right to be accompanied at their executions by spiritual advisers of their choice, who should be allowed to lay on hands and recite prayers as the condemned are put to death.

The justices spent 90 minutes questioning Kretzer and Texas Solicitor General Judd Stone, representing the Texas Depart­­ment of Criminal Justice and making his second high-profile SCOTUS appearance in as many weeks, after defending the state's Senate Bill 8 abortion ban. (As he did with SB 8, Stone's boss, scandal-wracked Attor­ney General Ken Paxton, issued a press release that reads as if he personally argued the case at the high court, without mentioning the S.G. at all.) Kretzer told the Chronicle he thought the justices had looked favorably on the right to audible prayer during executions; he was less confident about their stance on the laying on of hands. "I think we made all our points," Kretzer said. "My guess is that a majority emerges to allow prayer. Touch is clearly more marginal."

Ramirez was sentenced to death for the 2004 murder of Corpus Christi native Pablo Castro. He asked TDCJ in August to let his pastor accompany him inside Huntsville's execution chamber to lay on hands and pray over him. Prison officials said they would allow the pastor inside, but he would have to stand silently in a corner, saying and doing nothing. When Ramirez appealed, a string of courts sided with TDCJ until SCOTUS called off his execution at the last minute and agreed to consider his claims.

Kretzer told the justices that allowing spiritual advisers to console the condemned with prayers and touch is a universal norm stretching back centuries. It's also one that Texas has routinely observed in hundreds of previous executions. Spiritual advisers – almost always Christian chaplains employed by TDCJ – have historically placed a hand on the condemned inmate's leg and whispered prayers as the lethal injection took effect.

But TDCJ abruptly ended the practice in April 2019 after denying Patrick Murphy's request that a Buddhist adviser chant with him as he was put to death. Murphy appealed to SCOTUS, which ruled that Texas either had to allow spiritual advisers of all faiths into the execution chamber, or none at all. Texas prison officials chose "none," but this only led to more litigation. In April, they announced the policy that Ramirez is now appealing, allowing vetted spiritual advisers from outside the department into the execution chamber, as long as they remain silent.

The state, which in most contexts holds that the freedom of faith is absolute and limitless, is willing to make an exception to allow the death penalty to be enforced in Texas without obstruction; it argues that Ramirez's religious convictions (and Mur­phy's before him) are an insincere pretext. As Paxton wrote in his press release, "Prison­ers on death row should not be allowed to manipulate our justice system to delay execution for their heinous crimes."

In defending the new policy, Stone argued that TDCJ wants to eliminate any risk that spiritual advisers might disrupt an execution. Justice Amy Coney Barrett poked holes in that reasoning, saying that some level of risk is necessary to ensure religious liberty. "I'm just wondering if it's legitimate to define it as trying to get to zero percent risk," Barrett said. "If [prison leaders] said, 'We want the risk of prison rioting or fighting to be zero percent,' that would permit the prison to say there can never be any kind of prayer service or gathering."

Kretzer agreed and added that allowing death row prisoners a measure of humanity at the end of their lives isn't about letting them "game the system" as Justice Clarence Thomas repeatedly put it. "It's the same reason we don't torture prisoners," Kretzer said. "I mean, this isn't a gift given to people who killed somebody. It's a reflection of our values as a society."

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