A Texas death row inmate’s demand for his personal pastor not only to be present, but also praying and in physical contact with his body during administration of the lethal drugs that will end the prisoner’s life, is a delay tactic, the state’s lawyer told the Supreme Court.
Texas Solicitor General Judd E. Stone II said the condemned man, John Henry Ramirez, 37, has been wasting everyone’s time trying to delay his inevitable execution.
“Petitioner has twice received the extremely exceptional remedy of having his execution halted at the last minute,” Stone said during oral arguments on Nov 9.
“Each time he litigates ... [another] execution date, he receives another lengthy reprieve. This court should not countenance the delay of a fourth execution date.”
Respondent Bryan Collier runs the Texas Department of Criminal Justice (TDCJ).
On July 19, 2004, the former U.S. Marine, then 20, seeking money to buy drugs, robbed and murdered Pablo Castro, 46, stabbing him 29 times, and taking $1.25 from him. Ramirez robbed a second victim at knifepoint and tried to rob a third. He evaded arrest for 3 1/2 years in Mexico, prosecutors say.
“The right of a condemned person to the comfort of clergy—and the corresponding right of clergy to comfort the condemned—are among the longest-standing and most well-recognized religious exercises known to civilization.”
During oral arguments, Ramirez’s attorney, Seth Kretzer, said Texas performed an about-face two years ago.
“Across Texas’s 572 executions spanning four decades, the state’s policy was to allow a spiritual adviser to be present in the execution chamber to lay hands on a condemned inmate and to audibly pray,” he said.
“In 2019, that long-standing practice changed suddenly when the state chose to forbid any religion adviser from the execution chamber.”
The state’s “own history and practices, as well as the current approaches of the federal government and states like Alabama, prove that Texas’s restrictions on touch and prayer are not the least restrictive means of furthering its proffered execution interests,” Kretzer said.
Even if Ramirez doesn’t prevail under RLUIPA, “this court should remand for an evidentiary hearing in which both sides may develop the record.”
Justice Stephen Breyer said Stone seemingly admitted that Texas has experience in allowing pastors into the execution process “and there’s never been a problem.”
But Stone said there was “an important distinction,” which is “that for every one of those circumstances, the individual is a TDCJ employee.”
“There is a very significant difference between having an outsider with no relationship whatsoever—” Stone said, only to be cut off in mid-sentence by Justice Elena Kagan.
Kagan said, “Are you aware in any other states of an execution going astray because of an outside spiritual adviser?”
Stone said he was not, but only “because this is very new in the handful of jurisdictions that allow it.”
“This is the sort of thing we would anticipate to be a very low likelihood of occurring,” but disrupting an execution has “catastrophic potential.”
Replying to Justice Amy Coney Barrett, Stone said Texas is “attempting to minimize risk almost all the way to zero ... as much as we reasonably can.”
Justice Brett Kavanaugh asked Stone, “so the risk is low, but the potential harm ... catastrophic ... so those two things need to be thought about together?”
“That’s exactly right,” Stone said.
“Texas being unwilling to tolerate a very small amount of risk in the death chamber, where a tiny amount of risk can lead to a situation that ... would create intolerable pain for an inmate or an intolerable amount of reliving of suffering for a victim, for the victim’s families or any of these very high ... negative value problems,” Stone said.
Kavanaugh asked Kretzer about the impact of repeated execution delays on surviving family members of the victim who have had to endure “four and a half years of postponed executions.”
“If we’re going to rule for you, I think we need some clear lines so ... we’re not putting future victims’ families in the same position of time after time having these delays.”
Kretzer replied, saying he had “nothing but the greatest sympathy for the family of Pablo Castro,” but that “victims’ interests were specifically taken into account by Congress when it passed the RLUIPA.”
Speaking for the Biden administration, Deputy Solicitor General Eric Feigin said courts shouldn’t be “micromanaging prison procedures,” and that Texas is legally justified in “substantially limiting physical contact with the inmate and vocalization by a spiritual adviser in the highly choreographed and sensitive execution procedure.”
However, “a categorical ban like Texas appears to have, isn’t the least restrictive means for doing so,” he said. “To justify such a ban ... its experts would have to offer state-specific reasons why it’s necessary.”
In federal executions, “the spiritual adviser has been well away from the inmate as the drugs are actually administered,” Feigin said.
The U.S. Bureau of Prisons performs “auditory monitoring during the administration of the drugs, in particular, listening for any drip from the IV lines ... and ... for a particular snoring sound ... that would indicate the pentobarbital is working as it is supposed to and ... chanting and praying sometimes could interfere with that.”
