Last month I wrote about Domeneque Ray, the Alabama death row inmate who was denied the right to have an imam present in the chamber when he was executed. Ray filed for a stay, alleging that Christian inmates had the benefit of a Christian chaplain at their side, while he and the condemned of other faiths were denied the cleric of their choosing. The stay was granted by the lower court, but SCOTUS overturned it, claiming Ray waited too long to raise the issue (which, according to Ray, was because he was not told of the protocol until then.) Ray was executed without his religious adviser at his side. Now, SCOTUS has granted a stay on the same issue to Patrick Henry Murphy, a Buddhist on Texas’s death row who alleges only Christians and Muslims in the state are allowed their chosen cleric in the execution chamber.
Writing a concurrence to the brief paragraph granting the stay, Justice Kavanaugh opined that, in his view “the Constitution prohibits such denominational discrimination.” He further wrote that the state had two options: allow all condemned inmates to have the religious adviser of their choosing in the execution chamber; or not allow any religious adviser in the room (in the latter case, the chosen cleric could be present in the viewing room.) In a footnote, without directly referencing Domeneque Ray, Kavanaugh concluded that Murphy’s application for stay was “sufficiently timely”.
Interestingly, Kavanaugh sided with the conservative majority in Ray’s case, which was a 5-4 split (with the liberal justices in all joining in a dissent by Kagan.) Murphy was 7-2 in favor of the inmate, with only Alito and Gorsuch dissenting. So what was the difference? What distinguished Patrick Murphy’s case from that of Domeneque Ray?
The Court seems to hold that the difference is based on the time frame in which each man raised the issue. It is unclear whether they mean the first time each man asked the state for his cleric of choice or the date on which they formally requested a stay through the courts. So let’s consider the time frames:
Domeneque Ray
Order setting date issued: November 6, 2018.
Scheduled execution date: February 7, 2019.
Date of request to state: January 23, 2019 (78 days after scheduling; 15 days prior to execution.)
Date legal relief sought: January 28 (83 days after scheduling, 10 days prior to execution.)
Patrick Murphy
Order setting date issued: November 29, 2018.
Scheduled execution date: March 28, 2019.
Date of request to state: March 1, 2019 (91 days after scheduling; 27 days prior to execution.)
Date legal relief sought: March 12, 2019 (102 days after scheduling; 16 days prior to execution.)
So, who was timelier in bringing their complaint and by how much depends on which standard you want to use. Going by how long it took the men to bring their complaints after their death date was set, Ray was significantly timelier. But in Ray’s case, the Court cited January 28th, the date Ray sought formal legal relief. Based on that, the difference between the two men-the difference in what made their request timely versus untimely-was 6 days. Less than one week.
In Murphy’s case, however, in Justice Brent Kavanaugh’s concurrence, his footnote indicates that Murphy “made his request to the State in a sufficiently timely manner, one month before the scheduled execution”, which appears to refer to the date on which Murphy first asked the state for a Buddhist advisor. By that standard, Murphy was faster by 12 days. No matter which standard used, the determination of timeliness is arbitrary, not based on any clear standard in the law, and inconsistently applied from one case to the next.
On the upside, SCOTUS’ order signals their opinion that the type of religious discrimination suffered by both Ray and Murphy is unconstitutional and will not stand. While Murphy’s case is at present only a stay while his claim makes its way through the lower courts, the writing on the wall seems to clearly indicate that the high Court would rule in favor of either everyone, or no one, having the cleric of their choosing in the death chamber when their time comes.
Unfortunately for Domeneque Ray, he’s already dead. But one need not have sympathy for Ray or object to the death penalty to see an injustice here. It may be that no condemned inmate will have the comfort of his spiritual leader at his side when the state puts him to death; so long as all are afforded equal treatment, justice in that regard is done. Let’s hope that every death row in the country gets the message.
I think the conservatives on SCOTUS were essential shamed by the Justice Kagan if I may engage in a bit of Kremlinology. They realized that they made a very dumb decision previously and changed course. It happens.Report
This seems eminently plausible, but a lot of people are going to look at the two photographs, and hear about the respective non-Christian faiths of the two condemned men, and reach other conclusions.
And the Roberts Court has done little to make me think they’d be unjustified in doing so.Report
You don’t have to look at things they haven’t done, you can look at things they have done, and the consequences of those decisions.
This is the Court that rolled back VRA protections on states such as North Carolina, which immediately went on a bender of discriminatory gerrymandering.
We’re supposed to trust this Court’s judgement about racial matters? We’re supposed to think that they understand and integrate thinking about how racial bias works in our culture into their judgements?
I like giving people benefit of doubt. But their positive actions have removed a lot of doubt. I’m not charging bad faith, I’m saying they are in denial and stonewalling any sense of how racial bias works in our country.Report
This is a good take and I tentatively endorse it. We may never really know the whole truth, but I recall when Ray’s case was decided that it brought immediate cries of outrage — in some cases, from good Christians and not just us commielibs.
I’m an atheist. In my opinion, denying a condemned prisoner access to clergy of their faith renders an execution inherently cruel and unusual punishment. If, unlike me, you actually do believe in the existence of a soul and the validity of religious exercises to redeem that soul from the ravages of sin and prepare it for the afterlife, that goes double.Report
I agree with you Burt. I would point out that these men were permitted to meet with their spiritual advisors in the hours leading up to their deaths, right up to the chamber door (not to downplay the comfort provided by having the person at their side when the real moment comes.)Report
There’s also the issue that most religious practitioners feel a duty to witness this sort of event as a means of spreading peace from their work. Thus they would prefer to be beside the condemned then behind plate glass.Report
Taking a lesson on rules corrections from the NFL. “We botched it, but we promise to overreact the next time.”
I’m sure skin color had nothing to do with it.Report
Seriously, someone’s got to break into a smile so I’ll know you’re kidding about this being a racial thing. If you don’t, I’m going to have to believe you.Report
I don’t think it’s a racial thing.
I think it’s a “bad previous decision made for non-racial reasons coupled with deserved distrust on racial matters” thing.Report
At this point, I am completely unwilling to give any of these privileged yahoos the benefit of the doubt on race, sex, or any other bias. Based on a list of previous behaviors thick enough to choke a horse, they would have to demonstrate clearly that their decisions did not have a racial component to it or I will assume the worst.Report
It is a complete coincidence that a white guy got more justice than a black guy did. It always is.
There was also no way to predict that Gorsuch would be the same kind of “never saw an authority whose ass he wouldn’t kiss” toady as Alito.Report
I would agree that this second ruling is a much better one. I can live with that. I never thought I would say this about SCOTUS, but really. What a bunch of dumbasses.
Kavanaugh’s footnote seems evidence for my impression of him as a political servant. That guy is never going to be a leader, no matter what office he gets himself appointed to. He’s going to suck up to the most powerful person in the room, no matter what.Report
The court is no doubt cognizant that such last minute notifications by the condemned are often used as a delaying tactic, and this one can become a game of “stump the warden”. I’d request some obscure tribal shaman from a rain forest in Brazil and see if the state would mount an expedition into the heart of darkness to find him, or an obscure schismatic lama from Chinese-occupied Tibet that they’re never going to allow onto a plane. If those requests fail, a Satan worshiper or Charles Manson cultist should do a great job of turning the whole thing into a horrifying disaster for everyone involved.
Accommodating all reasonable and timely requests, but only reasonable and timely requests, or not indulging condemned convicts at all, seem like a safe position for the court to take.
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So do ya think Ray’s request that Alabama allow him access to an Islamic Immam was an exotic last minute nuisance? I mean, sure, it is Alabama but Fox news tells me Muslims are trying to establish Sharia there all the time so surely they wouldn’t be hard to find? Send a well armored Alabama State trooper into one of those no-go zones maybe?Report
Alabama would have had a week to find an imam who is employed by the state prison system and trained in the procedures, because those were requirements under Alabama state law, and that applied to Christians, Jews, Muslims, and Buddhists. Christians don’t get to have the pastor of their choice. They have to make do with a prison’s pastor. Here, there wasn’t a properly employed and trained imam available.
Now if the request comes in early, training and imam and putting him on the payroll as some sort of adjunct isn’t much of a burden.
The justices probably think about such things from time to time.Report
In the Alabama case, they withheld the execution protocols and policies from the inmate. When he asked for his cleric is when he was told he couldn’t have him, so he couldn’t raise the issue until then.
Also worth noting there was an imam already serving the prison’s Muslim population, so they would not have had to go out and find one.Report
This is a common kind of legal BS, isn’t it? E.g. in civil asset forfeiture cases, there’s often an undisclosed deadline for appealing the confiscation, which conveniently expires before an appeal can be made.Report
Makes you wonder what access Mr. Ray had to an imam before his execution. because if there was regular access to one for normal religious practice and education, that should have made the additional training a low bar to overcome.Report
OK… But the whole point of my post is that the “timeliness” requirement is an arbitrary moving target and inconsistently applied…Report
So, it appears that in the Roberts balls and strikes court make up calls are allowed.Report
It’s technically not a makeup call when you get it right the second time.Report
The pictures alone go an awfully long way toward explaining the different conclusions.Report
And we see from today’s ruling that timeliness trumps torture.Report