Alabama’s inhumane execution practices have repeatedly been the subject of Supreme Court decisions. The latest one, though, raises more questions than it answers.
Adam Liptak for NYT (“Supreme Court Rebuffs Alabama’s Effort to Bar Pastor From Execution Chamber“):
The Supreme Court late Thursday night let stand a ruling that halted the execution of an Alabama inmate unless the state allowed his pastor to be present in the death chamber.
The inmate, Willie B. Smith III, a Christian, sought to have his pastor, Robert Paul Wiley Jr., provide him with spiritual guidance and comfort, his lawyers wrote, “including by holding his hand, praying with him in his final moments and easing the transition between the worlds of the living and the dead.”
Prison officials denied the request under a recently revised policy that bars from the execution chamber spiritual advisers of all faiths. A federal appeals court then ruled that the execution could not proceed unless Pastor Wiley was allowed to be present.
The Supreme Court’s order said only that it would not vacate the injunction entered by the appeals court requiring the pastor’s presence. It gave no reasons.
Setting aside the inherent problems with capital punishment, which are not at issue here, it’s not obvious to me on what basis a condemned man is entitled to have a spiritual advisor hold his hand while he’s actually being put to death. To the extent that he’s lost his right to continue living because his crimes against society are so horrific, why is he entitled to this particular accommodation?
Why not his parents or another loved one? An emotional support animal? His recreational drug of choice?
The order did not specify how every justice had voted. But Justice Amy Coney Barrett joined the court’s three-member liberal wing — made up of Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — to let the appeals court’s ruling stand.
“Alabama has not carried its burden of showing that the exclusion of all clergy members from the execution chamber is necessary to ensure prison security,” Justice Kagan wrote for those four justices in a concurring opinion. “So the state cannot now execute Smith without his pastor present, to ease what Smith calls the ‘transition between the worlds of the living and the dead.’”
Where does this right inhere? Or where does the state get the duty to appease the superstitions of its condemned in this particular manner?
Justice Clarence Thomas wrote that he would have lifted the injunction but gave no reasons.
In a dissent, Justice Brett M. Kavanaugh, joined by Chief Justice John G. Roberts Jr., wrote that he, too, would have lifted the injunction.
“Because the state’s policy is nondiscriminatory and, in my view, serves the state’s compelling interests in ensuring the safety, security and solemnity of the execution room,” he wrote, “I would have granted the state’s application to vacate the injunction.”
That seems the obvious ruling here. Indeed, in the past, Alabama provided only for Christian pastors. The Court, almost exactly two years ago, said that was just fine. And that was a real case, heard during the real session, with real opinions. Since then, Ruth Bader Ginsburg, was joined Kagan’s dissent in that case, has died, replaced by Barrett—who voted in the same direction.
It seemed rather obvious at the time that the previous practice violated the Establishment Clause of the First Amendment. But the Court allowed it, both on Alabama’s dubious claims of security concerns (the state-employed Christian pastors were vetted and trained in the execution process) and because the condemned had filed for delay after delay and the majority cried Enough.
But, now, Alabama has adopted a religiously neutral policy and suddenly it has a duty to accede to demands for spiritual support at the moment of execution?
Justice Kavanaugh added some practical advice.
“States that want to avoid months or years of litigation delays,” he wrote, “should figure out a way to allow spiritual advisers into the execution room, as other states and the federal government have done. Doing so not only would satisfy inmates’ requests, but also would avoid still further delays and bring long overdue closure for victims’ families.”
Would it, though? Wouldn’t inmates’ attorneys simply come up with other excuses for delay?
Indeed, shortly after the 2019 Alabama case, the Court ruled the other way in a related Texas case with slightly different facts.
About two months later, the court confronted a similar case from Texas and came to a different conclusion, staying the execution of a Buddhist inmate whose request that his spiritual adviser be present in the execution chamber had been denied.
In a brief, unsigned order, the court said that Texas could not execute the inmate, Patrick H. Murphy, “unless the state permits Murphy’s Buddhist spiritual adviser or another Buddhist reverend of the state’s choosing to accompany Murphy in the execution chamber during the execution.”
In a concurring opinion, Justice Kavanaugh wrote that the state’s policy of allowing only Christian and Muslim chaplains to attend executions amounted to unconstitutional religious discrimination. “The government may not discriminate against religion generally or against particular religious denominations,” he wrote.
Justice Kavanaugh wrote that states could exclude advisers of all denominations from the execution chamber, but may not allow only some to be present.
In response, Alabama changed its policy, now barring all spiritual advisers from the death chamber. Mr. Smith challenged that policy under a federal law that requires states to meet a demanding standard for actions that place a burden on religious rights.
Again, where does a “right” to have a “spiritual advisor” at the moment of execution inhere?
This very much smacks of making it up as we go along.
