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“Ramirez v. Collier: Will the Supreme Court Expand the Right to the Presence of a Spiritual Advisor for Prisoners During Execution?”

Peter Wosnik

In September 2021, the U.S. Supreme Court issued a rare, eleventh-hour stay in an execution case for prisoner John Ramirez. Ramirez was convicted of stabbing a man to death during a robbery that occurred in 2004. As critics have pointed out, the Supreme Court has been “unreceptive” to the majority of death penalty appeals as of late, particularly those which are close to the time of execution. However, Ramirez’s appeal invokes a claim to religious free exercise, which has recently garnered the Court’s attention.

Recent Supreme Court decisions in death penalty cases have taken up the question of whether a prisoner has a right to have a member of his or her clergy or spiritual advisor present during the execution — a common and historical practice both in the United States and abroad. In a petition to the Supreme Court in 2019, Alabama death row inmate Dominique Raye requested to have a Muslim imam present during his execution. Alabama objected, citing security concerns and that a Christian chaplain employed by the prison had already been provided to the inmate. In a 5-4 decision, the Supreme Court declined to grant a stay. The execution proceeded with Mr. Raye’s imam watching from another room. However, in a case just a few weeks later, the Court granted a stay in a Texas case for a Buddhist inmate requesting the same relief.

Later in 2019, Texas and Alabama responded by changing their policies, banning all clergy from being present in the execution room in an apparent effort to make a religiously neutral – albeit restrictive – policy. The Supreme Court intervened in the 2020 Texas case of Gutierrez v. Saenz and again in the Alabama case of Dunn v. Smith, permitting spiritual advisors to accompany those inmates into the execution chamber. Ramirez’s grievance came about when Texas created additional policies prohibiting clergy from touching the inmates in the execution chamber or praying aloud. As a result, Ramirez requested a stay in his execution date on the grounds that Texas’s policy, as in Gutierrez v. Saenz, violated the Religious Land Use and Institutionalized Persons Act, commonly referred to as RLUIPA.

RLUIPA was passed in 2000 in response to Supreme Court cases that limited the reach of the Religious Freedom Restoration Act (RFRA), particularly as it applied to state and local governments. RLUIPA focuses specifically on religious liberty claims of prisoners and land use regulations and zoning laws that substantially burden religious practice. In the context of a law or regulation that substantially burdens the religious worship of a prisoner, under RLUIPA, the government has the burden of showing that the law or policy is both “in furtherance of a compelling governmental interest” and that it is “the least restrictive means of furthering that compelling governmental interest”. In Ramirez’s case, he must show that the state barring his pastor praying for him and touching him during the execution would substantially burden his free exercise of religion. Questions about the sincerity of this belief and its religious importance will likely be important in the Court’s decision. On the other hand, Texas must give a reason why the prayer and touching during the execution could conceivably cause a problem and why that problem would rise to the level of a compelling interest. These very points were addressed during a recent oral argument before the Court on November 9. And while the Court has not ruled on the matter yet, their questions provide a window into the issues the Court cares most about.

The Court heard arguments from Seth Kretzer (Ramirez’s Attorney), Eric Feigin (U.S. Deputy Solicitor General), and Judd Stone (Texas Solicitor General). Kretzer argued that up until 2019, and in all of its 572 executions until that time, Texas had permitted that a spiritual advisor be present with an inmate and lay hands on and pray aloud for the prisoner, and that none of these permitted spiritual advisors had ever caused a problem with one of the executions. 

The justices’ questions for Mr. Kretzer centered on several fronts. Justice Thomas focused primarily on the Petitioner’s possible attempts at “gaming the system” — that is, filing a stay of execution for the purpose of delay rather than due to sincere religious belief — and how to determine if the Petitioner’s beliefs are actually sincere. Kretzer responded, in part, by arguing that Texas was responsible for the delay, not the Petitioner. 

Chief Justice Roberts asked if the Petitioner would be satisfied with his pastor touching him anywhere on his body. Picking up on this line of thought, Justice Alito was concerned that Ramirez’s case could lead to an “unending stream of variations” wherein the Court would be required to “go through the whole human anatomy with a series of cases”. He also questioned whether what type of audible prayer should be permitted — how loud, what type of prayer, when, and whether each person’s individual conscience would need to be respected or whether the institutional church of that person’s position would be adequate.

The Justices, as a whole, seemed to treat the Petitioner’s religious desires as sincere but also the state’s interest in having a safe and orderly execution as a serious issue.

The Justices, as a whole, seemed to treat the Petitioner’s religious desires as sincere but also the state’s interest in having a safe and orderly execution as a serious issue. Justice Sotomayor reasoned that the primary question in the case is whether the Petitioner’s request would “interfere” with the execution itself.

Judd Stone focused his defense of Texas’s policy primarily on his contention that the Petitioner’s petition was for the sole purpose of delay and that he should have raised it earlier. However, he faced questions by Justice Sotomayor about the role Texas may have played in delaying the process itself. Mr. Stone faced a tough line of questioning from Justice Breyer regarding the uncontested argument that no issues with an execution had ever occurred in the past when Texas allowed the presence of clergy — including vocal prayer for and physical touching of the prisoner — during the execution. Judd Stone also did not directly contest the sincerity of Rameriz’s religious convictions or his personal belief about the religious necessity of vocal prayer and touching by his pastor during the execution.

Despite the eleventh-hour nature of Mr. Ramirez’s request, the justices seemed to take his claim and sincerity seriously. And Texas did not seem to have a good argument as to why the state could not accommodate Mr. Ramirez’s requests in a way that protected the state’s interest in an orderly and safe execution. It also did not have a sufficient rebuttal to the fact that the practice of vocal prayer for and touch of the prisoner has a demonstrated history in America and other countries, and throughout multiple religious traditions. The Becket Fund submitted an amicus brief detailing the long history of clerical prayer in execution not only among Protestants and Catholics, but also in non-Christian traditions. They also demonstrated historical precedent for touching of inmates by clergy. In one compelling example, they pointed out that even Nazi war criminals — individuals convicted of horrendous crimes against humanity — were accompanied by clergy who prayed vocally prior to their executions.

These historical examples are not surprising, given that religious rituals so often accompany major life events such as birth, marriage, and death. It seems humane and just to offer individuals the right to spiritual guidance and aid in the hour of their death, notwithstanding the crimes these people may have committed. The Court must decide if this particular case merits the intervention of the Court and, if so, how broad or narrowly tailored its decision should be.♦

Peter Wosnik is the owner and founder of Wosnik Law, LLC, which is a trial-based law firm serving the Metro Atlanta area. Wosnik is a graduate of Emory University School of Law (Juris Doctor) and Candler School of Theology (Master of Theological Studies) where he received the Savage-Levey scholarship in law and religion.

Recommended Citation

Wosnik, Peter. “Ramirez v. Collier: Will the Supreme Court Expand the Right to the Presence of a Spiritual Advisor for Prisoners During Execution?” Canopy Forum, January 21, 2022.