Even on Death Row, Religious Liberty Must Be Protected

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One need not have sympathy for those who have committed heinous crimes and now sit on death row, awaiting the most severe and final form of punishment. Yet no matter the crime, each person facing execution is entitled to and afforded the protections of the United States Constitution. Last month, the Supreme Court affirmed that fundamental right by forcing Alabama to postpone the execution of Willie Smith.

Smith had been on death row since 1992, when he was sentenced for the kidnapping and murder of Sharma Ruth Johnson. Smith’s request to have his pastor present at his execution was denied by the state, citing its prohibition on clergy in the execution chamber to maintain prison safety and security. He claimed that his religious-liberty rights had been violated. After losing his case in district court, Smith was granted an injunction by the Eleventh Circuit. Alabama then appealed to the Supreme Court.

In Dunn v. Smith, Justice Kagan issued a brief opinion, concurring with the Eleventh Circuit’s stay of the execution, and was joined by Justices Breyer, Sotomayor, and — interestingly, though unsurprisingly — Barrett. Justice Kavanaugh authored a dissent, joined by Chief Justice Roberts. The Court also noted that Justice Thomas would have granted the state’s application. That leaves us with a bit of a mystery: We’re unsure how Justices Gorsuch and Alito voted — though we do know that at least one of them had to have sided with the Court’s liberal bloc plus Barrett. (Because the case arose from the Court’s so-called shadow docket, the final vote lineup is unknown.)

This was, of course, not the first time the Court had considered this sort of conflict. A handful of eleventh-hour religious-liberty disputes have arisen, especially in recent years. What makes Dunn v. Smith particularly interesting, though — aside from the unusual alliance of justices — is the substantive implications it may have for the Court’s death-penalty jurisprudence.

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At root, the present tension is between a prisoner’s interest in freely expressing his religion and a prison’s interest in ensuring safety and security within its walls. Requesting that a spiritual adviser be present in the execution chamber is both a common and an ancient practice. It is a basic exercise of one’s religious freedom to boot. Yet prisons doubtless need to ensure safety in the administration of their institutional duties, which include executions.

In a March 2019 case, Murphy v. Collier, a dispute arising in Texas similar to the one in Alabama, the Court favored the religious-liberty-interest party. Patrick Murphy asked that his Buddhist spiritual adviser pray with him at his execution. For six years, Murphy had practiced his Buddhist faith with Reverend Hui-Yong Shih; he believed that Shih’s presence at the moment of death was necessary to maintain the focus needed to be reborn in the Pure Land. Yet the state of Texas denied Murphy’s request on the grounds that Shih posed a security risk to the prison. (Never mind that Shih had been visiting the prison for over six years.) A Christian pastor or a Muslim imam could offer counseling in the chamber, but Murphy’s Buddhist minister had to look on from the viewing room.

The Court rightly held that this constituted denominational discrimination. Justice Kavanaugh wrote at the time that “governmental discrimination against religion — in particular, discrimination against religious persons, religious organizations, and religious speech — violates the Constitution.” Very plainly: The state may not bar inmates of some faiths but not others from having their preferred religious adviser in the execution chamber. Following the Court’s decision, the state of Texas amended its policy by eliminating clergy access for prisoners of all religions.

Texas wasn’t alone in its decision: The Alabama Department of Corrections quickly adopted the same wholesale ban in its own facilities. Indeed, the state of Alabama — which for decades had required that a clergy member be present at executions — decided that it was no longer going to offer any religious accommodations at all.

This was the policy that Willie Smith faced last month. In challenging the state’s restriction, Smith brought the case under the Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000. The law provides that “no government shall impose a substantial burden on the religious exercise” of an institutionalized person unless the government demonstrates that the burden “is the least restrictive means of furthering [a] compelling governmental interest.”

Under RLUIPA, the prisoner applying for relief bears the burden of proving that his religious exercise is “grounded in a sincerely held religious belief.” (This is a necessary condition meant to ensure that the inmate isn’t using religious activity as a pretext, or to “cloak illicit conduct.”) Justice Kagan notes in her opinion that Smith conceived of his minister’s presence as being “integral to [his] faith” and “essential to [his] spiritual search for redemption.” Further, Smith conveyed that his pastor would not only “relieve his struggle as he passes” but also help him “properly express to God his repentance.” In other words, Smith’s religious sincerity was not in dispute.

Once he had satisfied this condition, the burden shifted onto the state of Alabama to prove that its wholesale ban on clergy in the execution chamber was the least restrictive measure in furthering its interest in ensuring safety and thus did not unduly trample on Smith’s free-exercise rights. In this case, it simply could not prove so.

Not only did the state have a proven record of ensuring prison safety with clergy members present in the chamber, it formerly required their presence. It revised that policy only after the Court had ruled against the Texas Department of Criminal Justice in Murphy. Moreover, as an amicus brief by the Becket Fund notes, the request for spiritual advisers had been granted by states in “13 of the 20 executions carried out nationwide since 2020.” Smith’s request was, therefore, entirely feasible.

Might Alabama’s conditions have been different from those of other states with more-permissive policies? It is conceivable. As the Court noted in Holt v. Hobbs, the policies at “other well-run institutions” are not necessarily controlling. They are, however, relevant in determining the need for certain types of restrictions, and in this case, the state of Alabama could not prove why its institution was sufficiently different from others.

First, the state posited that there was precedent for execution-time disruption in its facilities. Things can of course go wrong, and in fact they have, said Alabama. But consider Justice Kagan’s assessment of that precedent:

Alabama identifies “disturbances [that] have arisen around executions in the past.” . . . But its two examples concern close family members of inmates. The State cannot jump from those (dissimilar) incidents to a conclusion that even well-vetted clergy members risk disrupting an execution.

Indeed, clergy members are trained for such end-of-life scenarios and, unlike close family members, ought reasonably to be expected to behave appropriately. That expectation is strengthened by the fact that of the 35 executions Alabama has conducted in the past 20 years, there have been zero clergy-member disruptions in the execution chamber. Conflating the conduct of family and clergy is thus inadequate and unpersuasive.

The state also suggested that the warden could not determine the trustworthiness of the attending minister. Justice Kagan explains why this did not justify a wholesale restriction:

Alabama mainly asserts the need to close the execution chamber to all but those whom the warden has found “trustworthy.” . . . 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.

In other words, there were measures that the state could have taken to ameliorate its concern over the trustworthiness of the religious adviser and still grant Smith’s request. It chose not to. The Court identified the circumstances of Smith’s execution as unjust under the state’s current policy, and ruled accordingly.

In his dissent, Justice Kavanaugh found that the state’s policy was permissible because it was nondiscriminatory — i.e., it applied equally to all denominations, unlike in Murphy — and, in his estimation, “serve[d] the State’s compelling interests in ensuring the safety, security, and solemnity of the execution room.”

A few observations are in order. First, Justice Kavanaugh unquestionably arrived at his conclusion in good faith. In a 2019 case coming out of Alabama, Dunn v. Ray, the Court allowed the execution of Domineque Ray to proceed despite the state’s not allowing his Muslim imam to be present in the chamber. After the ruling, the Court’s conservative bloc was accused of being motivated by anti-Muslim bias. It was not the case then, and it is not the case now. In Ray, for instance, the Court did not rule on the merits of the case; instead, it found that his request was made too late. Here, Justice Kavanaugh — along with Chief Justice Roberts — simply afforded the state of Alabama more deference than others on the bench were inclined to give it. It is common and often reasonable practice to defer to the expertise of prison officials in the administration of their own institutions. In this case, however, the concurring justices carefully and dispositively proved that Smith’s evidence outweighed the deference given to the expert prison officials. There were very clear steps that the state could have taken to lessen the burden on Smith’s religious exercise.

Second, this now marks the second stay that the Supreme Court has granted in recent months. (The first, Gutierrez v. Saenz, dealt with Texas’s identical wholesale prohibition on clergy in the execution chamber.) Justice Kavanaugh acknowledges the Court’s decisions in these two cases, and suggests a path forward:

It seems apparent that States that want to avoid months or years of litigation delays because of this RLUIPA issue should figure out a way to allow spiritual advisors 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.

Justice Kavanaugh is right. Fortunately, it appears that the state of Alabama is listening: In recent days, lawyers with the state attorney general’s office noted in a court filing that the Alabama Department of Corrections is in the process of amending its lethal-injection protocol to allow inmates to have their spiritual adviser present if they so request. Texas should also heed Justice Kavanaugh’s words and follow suit in amending its policy — not simply out of expedience but because it is constitutionally prescribed. Indeed, the Court’s ruling is an essential reminder that the First Amendment does not merely protect an individual’s right to believe in his religious faith, it vigorously defends his right to practice it. That right is not contingent on anything. And it is held by each of us — not least those in their final moments of life.

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