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Spiritual touch on death row is still taboo despite high court’s OK

Texas has yet to write a policy complying with a ruling from last term that says pastors can touch inmates in the death chamber. 

WASHINGTON (CN) — A Texas death row inmate is challenging his scheduled execution at the Supreme Court, claiming a corrections facility has failed to uphold his religious rights as required by recent precedent. 

The petitioner, Stephen Barbee, was convicted of killing his ex-girlfriend and her 7-year-old son in 2005. At his scheduled execution on Wednesday, Barbee is requesting a spiritual adviser hold his hand and pray audibly over him while his sentence is carried out. 

Texas Department of Criminal Justice policy meanwhile allows a minister only to be present at executions. Despite an 8-1 ruling from the high court last term in a similar case, the department has yet to create a policy that allows for either audible prayer or touch. 

In March, the Supreme Court found that the state violated federal law by refusing to allow spiritual advisers touch and pray out loud while John Henry Ramirez was executed.

Barbee was informed that his spiritual advisor would be unable to touch or speak to him in the death chamber shortly before the court took up Ramirez’s case last term. The department snubbed the subsequent grievance form in which Barbee claimed his religious rights were being violated, and his next step was to file suit under the Religious Land Use and Institutionalized Persons Act.

A federal judge stayed Barbee’s execution and then reopened the case following the court’s ruling in Ramirez v. Collier. The department now has approved a spiritual adviser to lay hands on Barbee's lower extremity after he has been secured to the gurney. The adviser is still not allowed to hold Barbee's hand. 

An injunction against Barbee’s execution from the district court was supposed to give the department time to create a policy, but the Fifth Circuit threw the injunction out. 

Barbee filed an emergency application to Justice Samuel Alito on Monday night, seeking a stay of execution. He also filed a petition for certiorari, asking if the Fifth Circuit errored in vacating the district court’s injunction. 

The inmate's attorney Richard Ellis says the Fifth Circuit’s ruling does the opposite of what the court intended in Ramirez

“By vacating the preliminary injunction, the Fifth Circuit’s holding will perpetuate the sort of chaos that this Court sought to avoid with its opinion in Ramirez,” Ellis wrote in the petition. 

Barbee says the lack of a clear policy from the department has allowed prison officials to have discretion over the religious rights of inmates. 

“The TDCJ’s policy — or, more accurately, the lack of one — was the source of the harm the district court identified in Mr. Barbee’s case,” Ellis wrote. 

He continued: “In short, the district court determined that the prospective irreparable harm to Barbee’s religious rights required the remedy of a new TDCJ policy.” 

Supreme Court Justice Elena Kagan meanwhile has received an emergency application out of Arizona where Murray Hooper is supposed to be executed on Thursday. Hooper was convicted of the 1980 killing of William Redmond and his mother-in-law, Helen Phelps. The sole survivor of the attack — Redmond’s wife, Marilyn — survived a gunshot wound to the head. Her eyewitness account was instrumental to securing the convictions of Redmond and two other men, William Bracy and Edward McCall, despite having initially given varied and at times contradictory descriptions of her attackers. 

Hooper meanwhile maintains his innocence. He has called into question Redmond’s account as well as other witness testimony. An investigator from the Maricopa County Attorney’s Office on the case, Dan Ryan, was found to have committed serious misconduct with one of the witnesses used to confirm Hooper’s involvement. Transcripts quoted throughout Hooper's petition note that Ryan gave money to witnesses and directed them to lie to the police, and that he also made it possible for Arnie Merrill — who provided testimony about his involvement in the planning of the crime — to get out of jail so he could have sex with his wife. 

The Arizona Supreme Court said the state suppressed exculpatory evidence regarding benefits Merrill received but still denied Hooper relief on appeal because of Redmond’s testimony. Hooper exhausted his appeals in March when the court turned away his petition. 

On Oct. 28, however, the Arizona Board of Executive Clemency received a letter that Redmond, the surviving victim, was unable to identify Hooper during a pretrial photo lineup, thus excluding him as a perpetrator to the crime. 

In an evidentiary hearing subsequently held by the Maricopa County Superior Court, the state argued that the county attorney made a mistake by stating Redmond was unable to identify Hooper. Hooper nevertheless was denied relief again. The Arizona Supreme Court also declined to review the case. 

Hooper now needs a Hail Mary. His petition asks if a state must provide defendants access to exculpatory evidence once its existence is known. 

Another inmate set to be executed Thursday, this time in Alabama, submitted an emergency stay-of-execution request to Justice Clarence Thomas, requesting the court halt his execution while considering his petition

Kenneth Eugene Smith was convicted in 1996 in the murder-for-hire killing of a pastor’s wife. A capital jury voted 11-to-1 to sentence Smith to life in prison without the possibility of parole, but a trial court overrode the jury’s sentencing determination and opted for the death sentence. 

Alabama abolished the authority of trial judges to override capital jury sentencing determinations in 2017. Smith wants the court to examine if his Eighth and 14th Amendment rights are being violated by his execution by condemning him to a sentence contrary to the jury’s determination. 

“A capital jury’s sentencing determination is the barometer for what is consistent with ‘contemporary community values,’ which assures that the determination comports with ‘evolving standards of decency,’” Robert Grass, an attorney with Arnold & Porter, wrote in a petition for Smith.  “Accordingly, executing Mr. Smith despite his capital jury’s 11 to 1 determination that he should be sentenced to life imprisonment without the possibility of parole would violate the prohibition of cruel and unusual punishments in the Eighth Amendment to the U.S. Constitution.” 

Smith will be executed on Thursday without the high court’s intervention. Should the court not address the question posed by Smith’s petition, there are another 30 other inmates facing a similar fate.

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