Clergy in the Execution Chamber Whack-a-Mole Continues

The game of “whack-a-mole” with clergy being in the execution chamber when a murderer finally gets his just deserts has popped up again.

Yesterday, the Supreme Court refused to lift a stay of execution imposed by the Eleventh Circuit on the ground that Alabama will not allow non-employees, including clergy, in the actual execution room. Four of the Justices concurring in this order purport to instruct the States how they can easily comply with the requirements and proceed with long-overdue justice. We’ve been there, done that. That’s how we got here.

Thirty years ago, Willie Smith abducted Sharma Ruth Johnson at gun point. He forced her into the trunk of her own car and drove around. He found her bank card, forced her to reveal the PIN, and stole $80 out of her account. He drove her around some more, taunting her with sexual overtures. Smith then told his accomplice that he was going to kill Ms. Johnson to keep her quiet. He opened the trunk, told Ms. Johnson he was going to kill her, and, despite her pleas, shot her in the head with his shotgun.

Sharma Ruth Johnson did not have the comfort of a clergyman or anyone else when Smith gunned her down.

Until two years ago, some states allowed inmates to be accompanied by a prison-employed chaplain in the execution chamber. As described in this post, on March 28, 2019, the Supreme Court granted a stay to a Texas murderer on the ground that the prison-employee-only rule discriminated against murderers who believe in religions for which the prison has no chaplains. Justice Kavanaugh, among those concurring in the stay, assured the States that they could simply bar all clergy from the execution room, with the final spiritual counseling merely advanced a matter of minutes and occurring outside the room.

That seemed eminently reasonable to me. Evidently it did to the prison authorities of Texas and Alabama as well, and they proceeded to do exactly that.

In June of 2020, shortly after Texas made the change, the Supreme Court granted a stay and sent a case back to the district court to “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.” See this post.

In the present case, the factual record was made. From the State’s request to vacate the stay:

[T]he court made reasonable factual findings—and certainly findings within its discretion—as to whether the ADOC [Alabama Dept. of Corrections] had a compelling governmental interest in the safety, security, and solemnity of the execution chamber and whether the regulation prohibiting free-world volunteers in the chamber was the least restrictive means of furthering that interest.

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[I]n light of all the evidence presented by the Commissioner, the district court found that the ADOC “has a compelling governmental interest ‘of the highest order’ in preserving the solemnity, safety and security of its executions as well as a ‘moral obligation to carry out executions with the degree of seriousness and respect that the state-administered termination of human life demands.’ ”

That does it, right? Guess yet again. From the four-Justice concurrence:

Alabama mainly asserts the need to close the execution chamber to all but those whom the warden has found “trustworthy.” Application 30. But that does not justify the State’s categorical bar. Alabama can take any number of measures to ensure that a clergy member will act responsibly during an execution. The State can do a background check on the minister; it can interview him and his associates; it can seek a penalty-backed pledge that he will obey all rules. See Dunn v. Ray, 586 U. S. ___, ___ (2019) (KAGAN, J., dissenting) (slip op., at 2).

Easy peasy, right? Only if you ignore the reality that this is not really about free exercise of religion; it is really a game of whack-a-mole to stop executions. The States typically choose not to challenge the sincerity of the murderers’ religious beliefs because there is really no way to do so effectively in court, but we can question it in public discussion of the matter. Seriously, folks, how many murderers really believe there is an enormous spiritual difference between making their peace with God at the moment the chemicals flow as opposed to 15 minutes earlier?

You can bet your bottom dollar that capital defense lawyers are scrutinizing the paragraph above and asking, “When the States do exactly what Justice Kagan said, how can we further delay executions by litigating the particulars of how they complied?” Let’s see. The security check criteria are too strict. They are applied in a discriminatory way. The penalty for the penalty-backed pledge is too severe. If it is monetary, it discriminates against clergy of limited means. Yada, yada, yada, yada.

The rookie Justice Barrett joined Justice Kagan’s concurrence this time. Her experience with capital cases on the Seventh Circuit was brief and limited. Perhaps she will come to understand soon how the capital defense bar is manipulating religion rather than genuinely defending religious freedom. I hope so.

And the fifth vote to deny the stay? The Chief Justice joined Justice Kavanaugh’s dissent. Justice Thomas noted that he would grant the application. That leaves Justices Alito and Gorsuch.

Justice Alito wrote a sharp dissent in the 2019 Murphy case. Justice Gorsuch joined it. I can’t imagine that Justice Alito has changed his mind. What is going through Justice Gorsuch’s mind? Hard to say.

One of the corollaries to Murphy’s Law tells us, “Once you open a can of worms, the only way to get them back in is to use a larger can.” In capital litigation, the cans just keep growing and multiplying. Once the Supreme Court makes a federal issue out of what should be a state policy, it opens the door to litigating every jot and tittle. That is the main reason these cases take so long.

The Supreme Court recognized the delay problem in forceful language two years ago in Bucklew v. Precythe (emphasis added):

The people of Missouri, the surviving victims of Mr. Bucklew’s crimes, and others like them deserve better. Even the principal dissent acknowledges that “the long delays that now typically occur between the time an offender is sentenced to death and his execution” are “excessive.” Post, at 16. The answer is not, as the dissent incongruously suggests, to reward those who interpose delay with a decree ending capital punishment by judicial fiat. Post, at 18. Under our Constitution, the question of capital punishment belongs to the people and their representatives, not the courts, to resolve. The proper role of courts is to ensure that method-of-execution challenges to lawfully issued sentences are resolved fairly and expeditiously. Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay.

Exactly right, Justice Gorsuch. Please do not allow yesterday’s decision to become a tool for doing what you correctly denounced in Bucklew.