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Death-row demand for pastor’s touch could split justices

The high court’s conservative majority seemed inclined to rule against a convicted murderer’s request to have a minister lay hands and pray over him during his execution.

WASHINGTON (CN) — A man facing capital punishment found sympathy but likely no relief Tuesday as the Supreme Court weighed his request to have his spiritual adviser be allowed to touch him and pray out loud before he is executed.

The legitimacy of the inmate’s request and the possibility of the spiritual adviser attempting to interfere in the execution were among the questions that plagued the justices as they considered the case of Texas inmate John Ramirez, 37, who was convicted by a jury of capital murder and sentenced to death in December 2008.

Ramirez, a former Marine, was trying to get money to buy drugs in 2004 and accompanied by two women when he stabbed convenience store clerk Pablo Castro 29 times, slashed his throat and made off with a dollar and 25 cents. He fled to Mexico but was arrested in 2008.

Ramirez sued Texas prison officials after he realized that his Baptist minister, Dana Moore, would not be allowed to pray with him and lay hands on him in the death chamber “to help guide him into the afterlife” as he was executed with a lethal dose of pentobarbital – Texas’ method of carrying out executions. He said this violates his First Amendment right to the free exercise of religion and the Religious Land Use and Institutionalized Persons Act.

Houston-based attorney Seth Kretzer said Tuesday morning on behalf of Ramirez that, when they found out that the state would not allow laying of hands by a pastor during execution, they filed a complaint “within days.”

“Mr. Ramirez filed his request in July of 2021. The state sat on this for six weeks until we were right on the cusp of the execution,” Kretzer told justices Tuesday.

Speaking on behalf of the Texas Department of Criminal Justice Tuesday, however, Texas Solicitor General Judd Stone expressed doubts that Ramirez’s appeal was sincere, noting that Texas had granted the inmate’s request in April 2021 to have his pastor in the chamber during his execution.

“If Ramirez was aware of the entire time that he wanted pastoral touch and audible prayer, he has no excuse for failing to timely raise and grieve those requests,” Stone said, further arguing that Ramirez’s successful work staying his execution in suggest he is gaming the system.

“The state's execution procedures publicly available as of this April,” Stone said. 

Ramirez’s case came up through the high court after a Houston federal judge declined to stay the execution. He then appealed to the Fifth Circuit in New Orleans, where a divided panel also refused to intervene. Finally, he filed an emergency application with the Supreme Court, and his execution, set for 6 p.m. on a Wednesday in September, was delayed, as prison officials waited for word.

The court called off the execution around 9 p.m. that Wednesday and ordered the case be fast-tracked for oral arguments.

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Ramirez’s September reprieve was the third time the inmate’s execution had been delayed. The first came in 2017, when courts granted his request for a new attorney, and the second last September with his attorney successfully arguing it should be pushed back due to health concerns amid the coronavirus pandemic.

“This court should not countenance the delay of a fourth execution date,” Stone said Tuesday.

Along these lines, Justice Clarence Thomas asked the inmate’s attorney about the sincerity of the request during questioning.

“If we think that Mr. Ramirez has changed his requests a number of times and has filed last-minute complaints — if we assume that that's some indication of gaming the system, what should we do with that with respect to assessing the sincerity of his beliefs?” Thomas asked.

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Kretzer’s response: “I can certainly see how a hypothetical inmate perhaps filing a last minute such request might so be construed. I can only speak as Mr. Ramirez’s attorney and I do not play games.”

Another question the justices wrestled with was Texas’ security concerns during the execution.

“We're attempting to minimize risk, almost all the way to zeros as much as we reasonably can,” Stone said.

Kretzer maintained that in the four decades leading up to 2019, when Texas banned having religious advisors in the execution chamber, 572 executions had been performed for which a spiritual advisor was allowed to be present in the execution chamber, to lay hands on condemned inmate, and to audibly pray.

Justice Stephen Breyer pointed out that pastor interference was historically not an issue in these situations.

“We have experience and there's never been a problem,” he said.

Justice Sonia Sotomayor also seemed inclined to believe as much.

“They [other justices] have fears that a unknown pastor could ... go to the IV line could go to the manacles, etcetera. But the manacles are nowhere near there. The minister has a person standing with him. I'm assuming that your argument is that every security risk they present is just not presented by these facts?” she asked Kretzer Tuesday. The inmate’s attorney confirmed.

Stone maintained, however, that was these religious workers were employees of the Texas Department of Criminal Justice for because of that concern.

“TDCJ is a correctional institution dealing with the extraordinarily charged and choreographed area of a death chamber,” he said. “There is a very significant difference between having an outsider with no relationship.”

Justice Brett Kavanaugh also raised concerns about having a person in the execution room as a death row prisoner with whom they have an existing relationship, calling the scenario “about the most fraught situation anyone can imagine especially if the person is by definition close to the inmate or spiritually friends.” 

“The idea that we can predict how another human being will react in that situation, and be sure as you're saying that the person's not going to react in a way that they would never react in any other situation, I don’t know,” he said.

Justice Amy Coney Barrett likewise asked Kretzer about managing the risk of having a pastor in the room, as “the state wants that risk to be zero because the consequences of a botched execution are quite high,” she said.

“The compelling interest is, in an execution, that it is done in the humane way, in the safe way, for all the circumstances that have been discussed here,” Kretzer said.

Justice Elena Kagan followed up with a question for Texas about its concerns: “Are you aware in any other states of an execution going astray because of an outside spiritual adviser?”

“No, Justice Kagan,” Stone said. “This is the sort of thing we would anticipate to be a very low likelihood of occurring. It's just catastrophic potential damage if it did.”

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Reading from the brief of the victim’s family, Kavanaugh pointed out the effect this has had on them, having to go through four-and a half years of postponed executions. 

“Their brief says, ‘Mr. Ramirez gets all this publicity like he just won a gold medal while she and her family are going through all this pain and suffering each time they're told Ramirez will be executed only to have the courts put a hold on it.’ We have to think about the victim's family members to with this,” he said, emphasizing that the court’s ruling must take into account the delay’s effects.

Pending factual disputes within the case between the two parties, Eric Feigin, a deputy solicitor general at the Department of Justice, also spoke before the high court Tuesday in support of neither party, asking the court to remand the issue so that Texas could offer state-specific reasons why the ban on prayer and touch by spiritual adviser is necessary.

This case marks the third time since 2019 the Supreme Court has called off the execution of a Texas inmate over the state’s rules for letting prisoners’ spiritual advisers give them last rites in the death chamber.

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