SCOTUS: Condemned Inmate Waited Too Long to Raise Religious Discrimination Issue

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Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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33 Responses

  1. Avatar Dark Matter says:

    Isn’t raising last minute objections in court to delay execution something of a cottage industry?Report

    • Avatar Stillwater says:

      Justice Roberts: “Had the complaint arisen in different circumstances we would agree with Ray’s claim to unconstitutional discrimination by the State of Alabama, but given the timing the court rejects that argument as merely a last ditch effort to prolong Ray’s life.” {{slams the gavel down}}Report

    • Avatar Em Carpenter says:

      How do you raise an issue you are unaware of? They were making the arrangements, final meal requests etc, when he first found out this would be a problem. He raised it at the first possible opportunity.
      Beyond that, there would not have been any delay if they’d made a very simple concession. They caused the attempt to delay by making him have to take it to the courts.
      In any event, an arbitrary “you took too long”, where there is no codified time limit, is a sorry excuse for grounds to reject a constitutional claim that they’d “otherwise agree” with.Report

      • Avatar Dark Matter says:

        My impression is the court feels the system is being abused by anti-death penalty activists. Does this issue have merit? Maybe… although this sort of religious objection opens yourself up to conversion to the flying spaghetti god and insisting delays because only a personal priest will do.

        Justices cited the fact that Ray did not raise the challenge until Jan. 28 as a reason for the decision. https://deathpenaltynews.blogspot.com/2019/02/alabama-executes-domineque-ray.html

        He was executed less than two weeks later on Feb 8th.

        He’d been on death row for… I think 20 years(ish). How many other times have his crew attempted to desperately find or invent other merit-worthy issues? That link I put up had 7 pages of people on Alabama’s death row. Some have been sitting on Alabama’s death row for 30+ or even 40 years.

        Also for perspective, Ohio is scheduling executions as far out as 2023. https://deathpenaltyinfo.org/upcoming-executions#year2019Report

        • Ray had requested a specific person. Allowing that would have required no delay.Report

        • Avatar Em Carpenter says:

          It doesn’t matter, imo, if it WAS simply a delay tactic. A constitutional right is a constitutional right regardless of your sincerity in asserting it. They must be protected.

          Once again: two weeks before the execution date was when they began making arrangements. That’s the point at which he requested and was denied his cleric. He was refused a copy of the rules and procedures prior. He had no way of knowing until then.
          It only posed a delay when they refused his request. He didn’t go looking for this cause of action-it was imposed upon him.
          As for the slippery slope argument: they could properly train the condemned’s chosen cleric on protocol. Or they could deny a minister to every one. The problem here is special treatment of one specific religion to the exclusion of all others.Report

          • Avatar Dark Matter says:

            It doesn’t matter, imo, if it WAS simply a delay tactic. A constitutional right is a constitutional right regardless of your sincerity in asserting it. They must be protected.

            He’s had 20 years to get his act together. The justice system has decided that “justice” in this case is for him to die, presumably asap.

            If *that* is actually justice then there needs to be a way to schedule an execution in years and not decades, or even better in months; If for no other reason but to let everyone else go on with their lives.

            At some point the bell needs to ring and the game needs to end. It’s unrealistic to expect him to agree to his own execution. It’s unrealistic to expect the anti-death fanatics to agree to it either. He may not have run out of arguments but he did run out of time.

            And yes, it’s not fair… but “fair” in this case would have been executing him a long time ago, so big picture he’s ahead in the game.

            As for the slippery slope argument: they could properly train the condemned’s chosen cleric on protocol. Or they could deny a minister to every one. The problem here is special treatment of one specific religion to the exclusion of all others.

            How long does it take to train/vet someone enough to put him on the “can be there” list?Report

            • Avatar Em Carpenter says:

              If “he had 20 years to get his act together”, then they had 20 years to accommodate his request and train/vet the person.

              Hard to do when nobody ever told him the rules until it was time to carry out the sentence. What part of that are people not understanding? He couldn’t have raised the issue sooner because he had no way of knowing. Even the law, if he’s presumed to have known it, says the condemned may have the religious leader of his choosing present at the execution. How would he have known they decided to limit their interpretation of this law to outside the chamber?
              Personally, I don’t care if he died scared and in spiritual anguish. I DO care about upholding constitutional law equally for everyone.Report

              • Avatar dragonfrog says:

                Hard to do when nobody ever told him the rules until it was time to carry out the sentence. What part of that are people not understanding?

                The part where it doesn’t comport with their predetermined view of the case.

                You have to raise the issue in a timely fashion. There are mechanisms in place to prevent you knowing the issue exists until it’s too late to raise it timely. It’s no excuse for being a laggard in raising it.

                Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.

                “That’s some catch, that Catch-22,” he observed.

                “It’s the best there is,” Doc Daneeka agreed.

                Report

              • Avatar Dark Matter says:

                If “he had 20 years to get his act together”, then they had 20 years to accommodate his request.

                Which he made 10 days before his execution.

                How would he have known they decided to limit their interpretation of this law to outside the chamber?

                The bulk of the people he interacts with are presumably experts in the nuts and bolts of carrying out the process. It’s a pity he didn’t ask anyone about this issue… but of course this line of thought makes the breathtaking assumption that he wasn’t simply looking for ways to throw sand into the gears.

                I DO care about upholding constitutional law equally for everyone.

                Part of the “committing heinous crimes” package is “losing some constitutional rights”. Imperfect religious accommodations can be added to the list.

                I think there’s a LOT to be said for making the process more transparent and more competent. However that will also probably make it faster… which I suspect is very much part of the problem from some points of view.Report

              • Avatar Em Carpenter says:

                I think you’re being deliberately obtuse and I’m not going to engage further.Report

            • Avatar Stillwater says:

              He’s had 20 years to get his act together. The justice system has decided that “justice” in this case is for him to die, presumably asap.

              ASAP = 20 yearsReport

  2. Avatar JoeSal says:

    I guess now is not the time to be mentioning conditions of reciprocity and machetes. The dude didn’t even die with sand on his knees.Report

  3. This was apparently an issue on which all Republican justices could agree, ideologues and toadies alike.Report

  4. I’ve tried to find the opinion online, but the only thing I’ve found is Kagan’s dissent. Does that mean the majority just issued an order without offering an opinion? Apologies if I should’ve understood that from the OP.

    The reason I’m checking is that I’d like to have a clearer idea of which facts were agreed on and which were in dispute. I haven’t read Kagan’s dissent yet, so maybe she makes that clear.

    ETA: d’oh! I didn’t realize that what I thought was the “dissent” was actually the entire case. A paragraph from the court and then Kagan’s dissent. Sorry for the confusion.Report

    • Now that I’ve read (the 3 pages of) the decision, it’s still not clear to me what facts are in dispute and what facts are not. I didn’t read the link to the new story Em linked to or any other post I’ve seen on this case. And I haven’t read any of the briefs, etc. So maybe they clarify.

      Knowing what I do from what little is presented, however, I have to say the court was wrong in refusing to stay the execution. I should say that while the first amendment issue is important, to me the crueller aspect of the decision is the timeliness argument, again, with me not knowing what is and is not in dispute.Report

      • Avatar Em Carpenter says:

        I read the briefs on SCOTUSBlog when I wrote this but I can’t find them now. I’ll try to find the link for you.Report

      • Avatar Em Carpenter says:

        OK So if you go to this link you can read the underlying petitions:
        https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/18a815.html
        As I understand it the only thing in dispute is the argument by the state that Ray should have known this rule a long time ago because he had been on death row so long and shouldn’t have waited so long.Report

      • Avatar PD Shaw says:

        The majority doesn’t have to give a reason to deny a motion for stay, just as they don’t have to give a reason to accept appeals in general. Justices don’t have to write a dissent for either, but when they do they its about the specific case, but also for a broader purpose.Report

        • Good to be reminded of that. Thanks.Report

          • Avatar PD Shaw says:

            This is just speculation, but I’ve worked at a federal appellate death penalty defense office (*) while in school and later volunteered. And I am surprised that anybody is allowed in the execution chamber. In that state, the execution could be viewed from behind a window by a limited number of family members and a media representative and maybe his lawyer. The religious figure would visit in the cell prior to the execution and walk them to the holding cell where they would separate.

            If you think there is a religious exercise issue here and the majority might, they still might think the ultimate equilibrium is that no religious figures are allowed in chamber. Which is exactly what Alabama promised to provide.

            (*) Clinton killed these.Report

    • Avatar Pinky says:

      It is an odd lack of a majority ruling. At least I’m not used to seeing that.

      But I’m confused about something Kagan wrote in her dissent. “I also see no reason to reject the Eleventh Circuit’s finding that Ray brought his claim in a timely manner.” The majority didn’t say that, though. They pulled a quote from Gomez v District Court: “A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.” That’s different. It’s not saying that Ray failed to raise this issue sooner; it’s saying that the lateness of a motion may be considered as a factor.

      Did the Court ever “reject the Eleventh Circuit’s finding that Ray brought his claim in a timely manner”?Report

      • Avatar Em Carpenter says:

        She is referring to the procedural history of the case. The district court found Ray’s claim was not timely; the 11th circuit said it was timely and granted the stay of execution while the first amendment issue was litigated. The state appealed to SCOTUS to vacate the stay, before the 11th circuit could rule on the merits of the constitutional claim.
        By vacating the stay, the Court is implicitly rejecting the 11th Circuit’s ruling re: timeliness, because that is the only thing the 11th circuit has ruled on.Report

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