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“The Supreme Court Expands the Rights of Prisoners Facing Execution”

Peter Wosnik

Religious liberty claims in death penalty cases have been an active area of litigation in the Supreme Court over the last several years. In a recent line of cases, the Supreme Court has clarified both a prisoner’s right to the presence of a spiritual advisor during execution generally (Dunn v. Smith 2021) and the issue of allowing some advisors but not others specifically (Gutierrez v. Saenz 2020). The case of Ramirez v. Collier addressed the question of whether the right to having a spiritual advisor present during the execution extended to the permission of religious touch and audible prayer for prisoners in the execution chamber. 

In what was doubtless a win for religious liberty proponents, Chief Justice Roberts (writing for the majority) issued an 8-1 opinion reversing the Fifth Circuit Court of Appeals and sided with the Petitioner/prisoner John Ramirez in his free exercise claim against Texas. Roberts concluded that Ramirez was “likely to prevail on the merits of his RLUIPA claim” in asking for audible prayer and religious touch during his execution.

 The Court’s RLUIPA analysis found Ramirez’s claim for audible prayer and religious touch to be sincerely held, despite some evidence to the contrary. Ramirez had issued a prior complaint in 2020 where he originally “disclaimed any need for touch.” While the Court addressed this prior complaint, noting that “evolving litigation positions may suggest a prisoner’s goal is delay rather than sincere religious exercise,” it reasoned that just because Ramirez’s complaint was dismissed without prejudice a mere week after it was filed does not outweigh “the ample evidence that Ramirez’s beliefs are sincere.” 

Before considering the compelling government interest standard of RLUIPA, the Court first acknowledged the “rich history of clerical prayer at the time of a prisoner’s execution, dating back well before the founding of our Nation.” The Court cited examples of prayers during executions in England and the American Colonies; George Washington’s ordering of the practice in the Revolutionary War; and the execution of the conspirators of the assassination of Abraham Lincoln wherein “the prisoners were accompanied by clergy of various denominations.” The Court also noted that “the United States Army even permitted Nazi war criminals facing execution to be accompanied by a chaplain, who ‘spoke’ prayers on the gallows in the moments before death,” and that the practice continues to this day. While the Court did not state it explicitly, the historical tradition of clerical involvement in execution clearly factored into its analysis and ultimate decision. 

In the compelling government interest portion of the analysis, the Court did not dispute that Texas had a compelling government interest both “in preventing disruptions of any sort and maintaining solemnity and decorum in the execution chamber” and in “security in the execution chamber, preventing unnecessary suffering, and avoiding further emotional trauma of the victim’s family members.” It also granted that legal injection is a “delicate process” and that there could be “a more serious risk of interference” than with the historical use of hanging. However, it disagreed that a categorical ban on religious touch and audible prayer was the least restrictive alternative. 

Regarding audible prayer, the Court reasoned that Texas did not present a good rationale for banning all audible prayer especially when, according to the Petitioner’s brief, Texas had “historically and routinely allowed prison chaplains to audibly pray.” Why was Texas suddenly opposed to a practice it had allowed in the past? Moreover, the Court suggested that prison officials could impose restrictions on audible prayer by clergy in the execution room by “limiting the volume of any prayer so that medical officials can monitor an inmate’s condition, requiring silence during critical points in the execution process (including when an execution warrant is read or officials must communicate with one another), allowing a spiritual advisor to speak only with the inmate, and subjecting advisors to immediate removal for failure to comply with any rule.” Prison officials could also “require spiritual advisors to sign penalty-backed pledges agreeing to abide by all such limitations,” the Court continued. These proposed examples could have the effect of protecting the state’s compelling government interest while also accommodating Ramirez’s religious practice. However, Texas had not offered such tailoring and instead asked the Court “simply to defer to their determination” – which, the Court noted, is not sufficient under RLUIPA. 

These proposed examples could have the effect of protecting the state’s compelling government interest while also accommodating Ramirez’s religious practice.

The Court delivered similar blows to Texas’s argument that there was no least restrictive alternative for religious touch. Again, the Court granted that Texas had a compelling governmental interest. But again, in the Court’s eyes, these interests did not preclude the possibility of reasonable tailoring. To address Texas’s interest in avoiding preventable suffering, the Court suggested four possible approaches short of banning all physical touch that could serve as a least restrictive means — namely, Texas could “allow touch on a part of the body away from the IV lines, such as a prisoner’s lower leg”; “require Ramirez’s pastor to stand in a location that gives the medical team an unobstructed view of the IV lines, allowing them to watch for problems and quickly respond”; “restrict the time period during which touching is permitted to minimize risk during critical points in the execution process”; and “require that the pastor undergo training so that he understands the importance of staying away from IV lines and taking whatever other precautions are necessary to avoid problems in the execution chamber.” 

However, in the Court’s view, not only did Texas fail to present less restrictive alternatives, it also suggested that the burden to do so fell on Ramirez. Such a contention gets the analysis backwards, the Court noted. Ultimately, given that the majority concluded that Ramirez’s request for clerical prayer and touch was a sincerely held belief and that Texas’s response was not the least restrictive means of furthering its compelling government interest, the Court found that Ramirez would likely prevail in his claim.

Justices Sotomayor and Kavanaugh each authored their own concurring opinions (Justice Thomas dissenting). Justice Sotomayor criticized the fact that the prison took 39 days to ultimately deny Ramirez’s step 2 grievance, which, she argued, “creates an impression, whether valid or not, that the prison is trying to ‘thwart inmates from taking advantage of [the] grievance process’ and cut short their opportunity to obtain judicial review.” Justice Kavanaugh analyzed the questions of when a state’s interest becomes “compelling” and when a least restrictive alternative is sufficient. While these are “[g]ood questions for which there are no great answers,” Kavanaugh wrote, the “compelling interest and least restrictive means standards are necessarily imprecise, history and state practice can at least help structure the inquiry and focus the Court’s assessment of the State’s arguments.” Kavanaugh also considered what the Court’s decision may mean for States going forward. He concluded that it “may behoove the States to try to accommodate an inmate’s timely and reasonable requests about a religious advisor’s presence and activities in the execution room. . . doing so not only would help States avoid future litigation delays but also would serve the exceptionally powerful interests of victims’ families in finally obtaining closure.” 

In a blistering dissent, Justice Thomas argued that Ramirez, rather than being a sincere religious petitioner as the majority believed, had “manufactured more than a decade of delay to evade the capital sentence lawfully imposed by the State of Texas.” Moreover, he averred that “Ramirez not only brought his claims piecemeal, he executed a bait and switch. He first demanded his pastor’s presence without touching, but then shifted and demanded touching when requesting Moore’s presence alone no longer gave him an excuse for delay.” In Thomas’s analysis, this abusive litigation, which in his view also caused the victim’s family pain in not receiving justice, “strongly suggests that he does not sincerely believe that his pastor needs to touch him in the execution chamber.” All of this led to Thomas’s conclusion that he did not believe Ramirez’s claims warranted equitable relief and were otherwise barred.

Laying aside the debate over Ramirez’s sincerity and whatever procedural issues there may have been with Ramirez’s appeal, the Court’s decision stands for the proposition that the religious liberty claims of prisoners should be taken seriously, especially those rooted in history and tradition. One could imagine future questions and litigation that may arise regarding certain religious practices during execution not encompassed by the Ramirez opinion. However, the current Court does not appear to be prone to second-guess religious sincerity. It will likely push state actors and litigants in the future, as it did here, to accommodate reasonable religious requests, so long as it can be done while still achieving any compelling government interest. 

The Court rejected Texas’s placing the burden of devising a least restrictive alternative onto the prisoner. The State, then, should come up with and provide common sense solutions to accommodate religious prisoners’ requests that bear on their sincerely held religious beliefs. Not only would this generate less litigation for the States, it would also communicate that we value the rights and dignity of all our citizens, even our condemned and convicted. ♦

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. “The Supreme Court Expands the Rights of Prisoners Facing Execution.” Canopy Forum, July 20, 2022.