Supreme Court Justices Skeptical of Death Penalty Last Rites
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Conservative Justices Question Religious Sincerity of Death Row Inmate Who Wants Pastor to Lay Hands on Him at Execution, Warn of Slippery Slope

John Henry Ramirez pictured sitting in the visitation room in prison, behind Plexiglas

John Henry Ramirez pictured sitting in the visitation room in prison, behind Plexiglas.

John Henry Ramirez is going to die soon. And the state of Texas is going to execute him. The only real question is whether or not he’ll be allowed the last rites that align with his stated religious beliefs. During oral arguments on Tuesday, the Supreme Court of the United States appeared unwilling to allow a Baptist pastor to lay on hands on Ramirez at the moment of his execution for the 2004 stabbing murder of 45-year-old convenience store clerk Pablo Castro.

Throughout the proceedings, Justice Clarence Thomas questioned whether Ramirez’s faith was genuine.

“Can one’s repeated filing of complaints, particularly at the last minute, not only be seen as evidence of gaming of the system but also of the sincerity of religious belief?” Thomas asked at the outset, setting the stage and the tone of the majority’s questioning of the condemned man’s attorney Seth Kretzer.

In the case stylized as Ramirez v. Collier, Ramirez has consistently asked, in various court filings, that his spiritual advisor, Pastor Dana Moore, be allowed to “lay hands upon him at the time of his death.”

Texas, however, has accused Ramirez and his legal team of attempting to simply delay the long-scheduled execution by way of legal brinkmanship. Thomas appeared to endorse that view and suggested that maybe the death row inmate wasn’t actually interested in the religious nature of the request.

Justice Thomas’ skepticism over a religious plaintiff’s claimed since religious belief was noted by legal journalists Mike Sacks and Chris Geidner.

“I can only speak as Mr. Ramirez’s attorney,” Kretzer replied in response to Thomas’s question. “And I do not play games. There’s no dilatory tactics in this case. When the state set the execution date in the year 2020, I filed the 1983 lawsuit and the state asked me to dismiss it without prejudice. When the state got a new death warrant in the year 2020, Mr. Ramirez immediately filed grievances. There was no waiting there. And the state responded by handing him a copy of this new policy that they promulgated on April 21, 2021. Mr. Ramirez has always, Justice Thomas, filed these grievances within days.”

The defense attorney went on to argue, echoing various briefs and motions filed in the case, that the facts suggest exactly the opposite: that prison administrators and other authorities have intentionally dragged out the process — and have themselves taken dishonest positions — in order to violate his client’s statutory and constitutional rights.

“Ramirez has been trying to push fast-forward while the State is trying to slow things down,” the September emergency petition filed with the court argued. “Counsel for the [Texas] Attorney General’s Office contacted Ramirez’s counsel when the ‘new’ section 1983 case was filed August 10, 2021. Yet the Attorney General’s Office has adamantly refused to file an answer- or accept service- in the month since.”

Kretzer went on to say that Texas has been particularly slow-moving in response to the no-touch requirement at issue “that was suddenly imposed in the year 2021.”

“The state delays,” the death penalty attorney insisted. “If there’s any delay here, it’s on the part of the state.”

During his time questioning Kretzer, Chief Justice John Roberts asked about where Ramirez’s pastor could lay hands on him in order to “satisfy his religious needs.”

Kretzer replied that even his client’s foot would be acceptable–an extremity just about as far away as one could get from where the lethal injection will pierce Ramirez’s arm.

Suggesting a slippery slope line of thought, Roberts followed up with a series of hypothetical situations where, for example, an inmate needed a part of the body closer to the injection site touched at the time of death or needed more than one pastor to touch their body during the prescribed execution time.

Justice Brett Kavanaugh interrupted the attorney’s response to offer his own iteration of what Kavanaugh said were the state’s slippery slope fears.

“That’ll be the next case,” Kavanaugh insisted, referring to multiple pastors. “And then there will be the next case after that and the next case after that–where people are moving the goalposts on their claims in order to delay executions. At least that’s the state’s concern.”

The justice went on to say the state’s overwhelming interest here was a risk-free execution environment, and he wondered what the court should do to try and accommodate and analyze such concerns.

“What they’re worried about is someone from the outside coming in and you never know,” Kavanaugh said, rattling off potential risks. “I don’t know how we sitting here–we haven’t, we’re not in the execution room, we don’t know–how we can question the state’s interest in keeping the risk of a problem close to zero.”

Kretzer responded by noting that there are laws on the books in every state that criminalize interference with a law enforcement proceeding and that there isn’t a single recorded case where a religious advisor actually has interfered with the state putting a person to death.

“If we rule in your favor here, this is going to be a heavy part of our docket for years to come,” Kavanaugh said at one point, a concern later echoed by Justice Samuel Alito as Kretzer attempted to field questions about the bright line rule that could be issued in favor of his client.

“Over the last couple of years, we have had a whole series of stay applications that present issues that are related to the one that is presented here and each one has been different,” Alito said. “Like, virtually every application for a stay of execution, they come to us at the last minute, the day before, sometimes the day of. And, what you have said so far suggests to me that we can look forward to an unending stream of variations.”

Justice Sonia Sotomayor appeared somewhat sympathetic to the argument offered by Ramirez by citing the federal law at issue: the Religious Land Use and Institutionalized Persons Act, which generally prohibits the government from burdening incarcerated individuals’ “religious exercise” unless such a burden furthers “a compelling governmental interest.”

The issue for Sotomayor appeared to be that RLUPA’s standard would really only preclude a religious accommodation that would actually “interfere” with the execution process. Dismissing Texas’s complaint that having the pastor “lay hands” on Ramirez would block the view, Sotomayor endorsed the foot-touching suggestion offered by Kretzer because that wouldn’t obscure anyone’s view of the execution itself.

Sotomayor went on to suggest that the facts don’t support the security interests raised by her conservative colleagues on the bench.

One potentially bright spot for Ramirez came from Justice Amy Coney Barrett, who was focused on whether the state’s compelling interest was actually in a “zero risk” execution. When questioning Kretzer, Barrett asked for a different expression, if the attorney had one, for that compelling interest–while noting that a “botched” execution wasn’t what anyone wanted. The attorney did have different formulation and framed the actual state interest as a “humane” execution.

The recently-minted justice followed up with that discrete legal issue during her questioning of U.S. Deputy Solicitor General Eric Feigin.

“I’m just wondering if it’s legitimate to try and define it as ‘zero percent risk,'” Barrett said. “If [a prison official or agency] said we want the risk of prison rioting or fighting to be zero percent, that would permit the prison, right, to say there could never be any kind of prayer service or gathering.”

Texas Solicitor General Judd Stone was also quizzed on that point by Barrett and suggested that her hypothetical about banning “all church services” due to the chance of a riot was a bridge too far and the correct policy related to risk should be weighed against the potential harm.

[image via Chip Somodevilla/Getty Images]

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