A Supreme Bait-and-Switch

The Supreme Court yesterday stayed the execution of Texas murderer Rubin Gutierrez. And what did the State of Texas do to warrant this last-minute interference with the execution of a very thoroughly reviewed judgment? They did exactly what Justice Kavanaugh said last year was a perfectly acceptable solution to the problem.

The problem in the Patrick Murphy execution was that Texas allowed prison chaplains to accompany the murderer right into the execution chamber, while outside clergy had to end their counseling outside the chamber when the murderer was taken in. This was considered a denial of equal protection of the law, because adherents of religions for which Texas does not have any chaplains necessarily had to get their last-minute spiritual solace from outside clergy. See this post on the archive blog.

Not to worry. Justice Kavanaugh, among those voting for the stay, mapped the path for Texas to avoid such litigation in the future.

In an equal-treatment case of this kind, the government ordinarily has its choice of remedy, so long as the remedy ensures equal treatment going forward. See Stanton v. Stanton, 421 U. S. 7, 17–18 (1975). For this kind of claim, there would be at least two possible equal-treatment remedies available to the State going forward: (1) allow all inmates to have a religious adviser of their religion in the execution room; or (2) allow inmates to have a religious adviser, including any state-employed chaplain, only in the viewing room, not the execution room. A State may choose a remedy in which it would allow religious advisers only into the viewing room and not the execution room because there are operational and security issues associated with an execution by lethal injection. Things can go wrong and sometimes do go wrong in executions, as they can go wrong and sometimes do go wrong in medical procedures. States therefore have a strong interest in tightly controlling access to an execution room in order to ensure that the execution occurs without any complications, distractions, or disruptions. The solution to that concern would be to allow religious advisers only into the viewing room.

In any event, the choice of remedy going forward is up to the State. What the State may not do, in my view, is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room.

So Texas did exactly that. In an unusual follow-up exchange, Justice Alito on May 13 wrote a dissent from the March 28 order. This dissent was joined by Justices Thomas and Gorsuch. Justice Kavanaugh wrote a response, joined by Chief Justice Roberts.

On April 2, five days after the Court granted a stay, Texas changed its unconstitutional policy, and it did so effective immediately. Texas now allows all religious ministers only in the viewing room and not in the execution room. The new policy solves the equal-treatment constitutional issue. And because States have a compelling interest in controlling access to the execution room, as detailed in the affidavit of the director of the Texas Correctional Institutions Division and as indicated in the prior concurring opinion in this case, the new Texas policy likely passes muster under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat.803, 42 U.S.C. §2000cc et seq., and the Free Exercise Clause.

Five Justices of the Supreme Court are on record that either there was no problem to begin with or that Texas had fixed it. So Texas is safe, right? Guess again.

Note the hedge word “likely” in the above paragraph. Here is yesterday’s order:

The application for stay of execution of sentence of death presented to Justice Alito and by him referred to the Court is granted pending the disposition of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. The District Court should promptly determine, based on whatever evidence the parties provide, whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.

Now they are going to stay this execution to consider the very thin claim that allowing a condemned murderer to have his final spiritual session at the last hour rather than the last second is somehow a violation of his rights. The federal courts are going to second-guess the state’s security decision and decide whether the security problem is “serious.”

In a memorable, and very funny, 1965 movie scene, the future Hanoi Jane is saved from hanging by a fake clergyman, the former Dobie Gillis, assisted by intoxicated future palimony defendant Lee Marvin.

But this is reality. No, the “spiritual adviser” is not going to be pulling off daring rescues. Even so, the state has an interest in not having him in the actual execution chamber. Execution procedures are already complicated enough and subject to too much litigation. Having one more person in the room who is not trained and likely does not want the execution to proceed is an additional complication. Even the possibility that he will simply be in the way is enough, in my view, to keep him outside.

Really, how much accommodation does the state have to provide for the murderer’s real or feigned spiritual needs? He is, after all, a murderer. The whole proceeding is, after all, punishment for an exceptionally heinous crime. It seems to me that a last-hour session is more than generous under the circumstances, and accompaniment up to the last second is excessive. To say that federal law mandates it or requires the state to show “serious security problems” to disallow it is quite a stretch, to put it mildly.

How much of this hand-wringing over spiritual needs is sincere, and how much is concocted just to generate one more litigatable issue to hold up executions? Our friends on the political left demonstrate no regard for religion in other contexts. During the lockdown, churches were told they were non-essential and banned no matter what precautions they took, while liquor stores and pot shops were allowed to open for business as usual. But for murderers, alone, spiritual counseling is an overriding priority right up to the moment of execution.

The Supreme Court owes the nation an explanation. Let us hope it is not long in coming.