“Last Rights? Death Chamber Chaplains and the Law”
Matthew P. Cavedon
On December 22, 1849, twenty Russian dissidents stood on St. Petersburg square, waiting to be shot dead by their government. They had already been offered last rites. Several were even tied to a post. Suddenly, a messenger announced that the Tsar would spare them. A mock execution, it was decided, was punishment enough.
Two of the condemned lost their minds. Another, Fyodor Dostoyevsky, would someday become one of the greatest novelists in European history. Decades later, he wrote his magnum opus: The Brothers Karamazov. One of the title characters, Ivan, was disillusioned with the Orthodox Christianity that Dostoyevsky himself had embraced. His reasons included the attitude of many of the faithful toward capital punishment.
By way of illustration, Ivan tells of a Swiss devotional pamphlet recounting the story of a young man named Richard. After a childhood of great deprivation, Richard killed someone. Once imprisoned, he “was immediately surrounded by pastors, members of Christian brotherhoods, philanthropic ladies, and the like.” They treated him with great affection, civilizing him and converting him to the faith. Eventually, Richard came to believe in the evil of his crime and “wrote to the court himself that he was a monster, but that in the end God had vouchsafed him light and shown grace.”
The people of his city rejoiced at his newfound belief and welcomed him as their brother. All the best citizens followed him from prison to the scaffold, assuring him, “This is the happiest day of your life, for you are going to the Lord!” Then, Ivan sardonically notes, “they chopped off his head in brotherly fashion, because he had found grace.”
Religion does not always play such a cynical role in executions. Together with the shift from the firing squad, scaffold, and guillotine to the modern gurney and its needles have come changing religious attitudes toward the death penalty. A particularly notable example is the Catholic Church, which long condoned capital punishment, but has moved over the past few papacies to declaring it “inadmissible.” And of course, many prisoners, both in the time of Dostoyevsky and Richard and today, have found great comfort in having religious personnel present when they are put to death. But whether they have the right to this is a hotly contested issue in American constitutional law.
The current controversy began last year with the case of Alabama convict Dominique Ray. Mr. Ray was sentenced to die for the 1995 murder and rape of a teenage girl. A state-employed chaplain would have been allowed to stay with Mr. Ray inside the execution chamber “to give him comfort, hold his hand and prepare him for death in his final moments.” But Mr. Ray was a Muslim and the State of Alabama did not employ any Islamic chaplains – meaning his imam could only observe the execution “from an adjoining witness room.” Mr. Ray challenged this policy, but the U.S. Supreme Court denied his appeal, in part because of the timing and nature of his legal arguments. In the end, Mr. Ray “died alone because he was Muslim.”
Two months later came the case of Patrick Murphy, a Buddhist death-row inmate in Texas. Mr. Murphy was convicted for killing a police officer in 2000. As did Alabama in Mr. Ray’s case, Texas closed the execution chamber to any minister other than a state-employed chaplain and did not employ any of Mr. Murphy’s co-religionists. Mr. Murphy, then, would not be allowed to have his spiritual adviser present. But this time, the U.S. Supreme Court agreed to stay the execution pending Mr. Murphy’s appeal. Its main concern was the unequal treatment faced by Mr. Murphy.
Texas responded – not by letting Mr. Murphy’s adviser into the chamber, but by restricting all chaplains to the observation room. This decision met with criticism from religious liberty advocates, clerics, and commentators. Said longtime death row chaplain Earl Smith of California’s famous San Quentin State Prison: “I can’t fathom why . . . I could imagine there may be good reasons for why you wouldn’t allow a religious leader or minister of any faith into a death chamber. But I don’t know why you wouldn’t allow the last wishes of a dying man to be honored. I don’t think the state, I don’t think society, has anything to lose.”
Moreover, Mr. Murphy continues to allege discrimination, because even under the new policy, the state-employee chaplains – that is, those who practice other religions than he does – can stay with convicts “until the moment the prisoner enters the executions chamber,” but “other spiritual advisors [have] to leave the prisoner two hours before execution.” This argument has persuaded the courts, too.
Mr. Murphy’s case has already set nationwide precedent as to what rights convicts have regarding spiritual accompaniment in the execution chamber. Based on his first U.S. Supreme Court appeal, it is clear that ministers have to be given the same access to prisoners regardless of their religion. But is non-discrimination the only right at play? Or do the condemned have the positive right to have a minister inside the chamber, a right that Texas’s new policy denies? The Becket Fund for Religious Liberty, which has a long track record of wins at the U.S. Supreme Court, says that they do. Religious death row convicts and their ministers continue to fervently seek the answer. In mid-July, two ministers went to court to unsuccessfully assert a right to be present during the first federal executions since 2003. But whether other courts will push open the doors remains to be seen.
Dostoyevsky eventually wrote that “[a] murder by sentence is far more dreadful than a murder committed by a criminal,” because at least with a criminal, the victim “undoubtedly hopes and hopes that he may yet escape until the very moment of his death.” But, he continued, “Doubtless there may be men who have been sentenced, who have suffered this mental anguish for a while and then have been reprieved; perhaps such men may have been able to relate their feelings afterwards.” That is, there were men like him.
The next best thing to reprieve is for the condemned to at least have a partial relief for their torments – the presence of a trusted minister. Regardless of the constitutional issues that the courts have to decide when called upon to intervene, the decent thing for the government to do is plain: afford unfortunate men like Mr. Ray and Mr. Murphy religious consolation in the execution chamber. ♦
Matthew P. Cavedon is a criminal defense attorney in Gainesville, GA. He graduated from Emory University in 2015 with a law degree and masters of theological studies.