A Permanent New Layer of Capital Litigation?

The anti-death-penalty crowd hit the jackpot some years back when they discovered that they could add a new layer of litigation to a capital punishment process that already has too many layers. Civil litigation over the method of execution has become routine. It has stopped executions in some states but not others. The promising new tool for obstruction is civil litigation over whether the state has gone far enough to accommodate the inmate’s real or fabricated religious needs during the execution process.

This is the real issue beneath today’s argument in the U.S. Supreme Court in Ramirez v. Collier, No. 21-5592. The case was discussed in this post on October 25.The Court spent a lot of time in the weeds on the particulars of this case, but Justice Kavanaugh and Justice Alito, in particular, also showed strong interest in coming up with a sufficiently clear rule that this will not become a routine matter in executions.

The simple answer is to just allow the state to ban all clergy from the actual execution chamber in all cases. After all, there were no clergy in the chamber when and where cyanide gas was the method of execution. There was no “laying on of hands” at the moment of execution when and where electrocution was the method.

Absent such a simple substantive answer, another possibility is the limit on civil litigation interfering with state criminal cases suggested in CJLF’s brief. No mention was made of that during the argument, but perhaps we will see a seed in the opinion that will sprout in a later case.