HOUSTON (CN) – A legal challenge from a Buddhist death-row inmate forced Texas this spring to nix a policy favoring condemned Christian and Muslim prisoners. The Fifth Circuit agreed his new claims of disparate treatment should be vetted, upholding a stay of his execution that was scheduled for Wednesday night.
As a devotee of Pure Land Buddhism, Patrick Henry Murphy Jr., 58, believes it is possible for him to be reborn in the Pure Land, but only if he can focus on Buddha as he takes his last breaths.
Murphy was set to die by lethal injection on March 28, but the U.S. Supreme Court granted him a last-minute reprieve.
The majority of the court agreed with his claims in a civil rights lawsuit that the state was discriminating against him on the basis of religion because the Texas Department of Criminal Justice, for security reasons, only allowed employees into the death chamber.
Murphy wanted his Buddhist priest, who has been visiting him in prison for the past six years, to be with him and chant prayers with him as he was executed.
Because the TDCJ employs Muslim and Christian chaplains, Murphy said, death-row adherents to those faiths could have chaplains give them their last rites but Buddhists could not.
“In my view, the Constitution prohibits such denominational discrimination,” Justice Brett Kavanaugh wrote.
He gave the state a choice: “(1) allow all inmates to have a religious adviser of their religion in the execution room; or (2) allow inmates to have a religious adviser, including any state-employed chaplain, only in the viewing room, not the execution room.”
Days later, Texas chose option No. 2, banning all clergy from execution chambers.
But Murphy claims in an amended lawsuit the policy change did not go far enough because the protocol for inmates on the day of their execution still favors Christians and Muslims.
Inmates are moved to a tiny cell, known as the “death house,” feet away from the execution chamber and can only meet with their spiritual adviser in the morning and from 3 to 4 p.m. They can talk on the phone to the adviser until 5 p.m., according to the case record. But TDCJ-employed clergy can be with the inmate until they enter the execution chamber.
Texas falls back to a familiar justification in court filings: security. It claims execution days are chaotic affairs in Huntsville with media arriving, protesters often gathering on the streets surrounding the prison, and TDCJ staff taking pains to ensure the family of the victim and family of the condemned never see each other.
The state also says that it does not strip search people who visit the inmate in the death room.
“This leaves an unabated security concern that the outside visitor will be able to smuggle contraband to the offender in the pre-execution holding area. That someone is visiting in a religious capacity does not lessen the concern that he or she may smuggle contraband,” Texas Assistant Attorney General Leah O’Leary wrote in a July 19 motion for summary judgment.
U.S. District Judge George Hanks, a Barack Obama appointee, denied Murphy’s and the state’s cross claims for summary judgment and granted Murphy’s motion to stay his execution last week.
In upholding the stay Tuesday in an eight-page opinion, the majority of a three-judge Fifth Circuit panel agreed with Hanks’ holding that “if Murphy were Christian, he would have the benefit of faith-specific spiritual support until he entered the execution chamber; as a Buddhist he is denied that benefit.”
Hanks wrote that he wants more time to vet factual concerns about the balance between Murphy’s religious rights and the state’s valid security considerations.
U.S. Circuit Judges James Dennis, appointed by Bill Clinton, and Stephen Higginson, an Obama appointee, agreed with the lower court.
“Murphy has a strong likelihood of success on the merits of his claim. Taking strong direction from the Supreme Court’s earlier decision staying Murphy’s execution, we decline to rush this significant inquiry,” Dennis wrote for the majority.
U.S. Circuit Judge Jennifer Walker Elrod, a George W. Bush appointee, wrote in a dissent that Murphy’s arguments fail because in essence they boil down to a single hour in which he would be denied access to his spiritual adviser.
When Murphy is strapped down on the gurney, he can see his spiritual adviser through a large window in the execution room and chant prayers along with him, Elrod said.
The dissenting judge also credited Texas’ arguments that the security risks are too great, writing there have been instances of religious volunteers trying to bring “illegal drugs, alcohol, and other contraband” into the prison.
TDCJ spokesman Jeremy Desel said the Fifth Circuit’s order will not prompt the agency to change its policy because Murphy’s underlying claims must still be resolved before Judge Hanks.
Murphy was serving a 50-year sentence for aggravated sexual assault in December 2000, when he and six other inmates escaped from a prison in Kenedy, Texas.
Some of the men held up a sporting goods store in Irving, Texas on Dec. 24, 2000 and shot and killed policeman Aubrey Hawkins when he pulled up to the store.
A jury convicted Murphy of capital murder for Hawkins’ murder in 2003 and he was sentenced to death.