The U.S. Supreme Court has found itself in the crossfire of harsh criticism from across the political spectrum after its intervention in a death penalty case allowed Alabama to execute a Muslim prisoner without providing him access to a religious adviser. Evangelical Christians and Catholic Bishops joined editorial boards and commentators from the New York Times to the National Review in condemning the Court’s 5-4 decision permitting the execution of Domineque Ray (pictured) on February 7, 2019. Los Angeles Times deputy editorial page editor Jon Healey wrote: “If you need a rabbi, an imam or other non-Christian spiritual advisor to accompany you into the death chamber in Alabama, God help you. Because the U.S. Supreme Court won’t.” Libertarian professor Ilya Somin, of the George Mason University Antonin Scalia Law School, called the decision a “grave injustice” and the conservative National Review headlined a column by its senior writer David French, “The Supreme Court Upholds a Grave Violation of the First Amendment.”

Alabama scheduled Ray’s execution on November 6. Undisclosed to Ray and the other death-row prisoners, Alabama’s secret execution protocol mandated that a Christian chaplain—and no other religious adviser—be present in the execution chamber. Ray sought to be provided the same access to religious comfort that the state afforded Christian prisoners, and requested that his imam be allowed in the execution chamber. The state denied his request on January 23, 2019, saying that the chaplain was allowed in the chamber because he was a trained employee of the Department of Corrections, but an untrained volunteer imam would present security concerns. Five days later, Ray sought a stay of execution alleging that Alabama’s policy violated his First Amendment right to free exercise of religion. A federal appeals court granted a stay to allow briefing on the issue, but the U.S. Supreme Court, in a contentious 5-4 decision, reversed the decision. In a dissent joined by Justices Breyer, Ginsburg, and Sotomayor, Justice Elena Kagan wrote, “Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion — whether Islam, Judaism, or any other — he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.”

Christian leaders raised concerns about the decision’s disregard of human dignity and its broader impact on religious liberty. In a news release issued under the heading “U.S. Bishops’ Chairmen Condemn Decision Preventing Muslim Man from Receiving Appropriate Spiritual Care at Execution,” the chairs of the U.S. Conference of Catholic Bishops committees for Religious Liberty and for Domestic Justice and Human Development called the death penalty itself “an affront to human dignity.” The statement said “Mr. Ray bore the further indignity of being refused spiritual care in his last moments of life.” The committee chairs—Archbishop Joseph E. Kurtz of Louisville, Kentucky, and Bishop Frank J. Dewane of Venice, Florida—wrote: “This unjust treatment is disturbing to people of all faiths, whether Muslim, Christian, Jewish, or otherwise. People deserve to be accompanied in death by someone who shares their faith. It is especially important that we respect this right for religious minorities.” In an op-ed for The New York Times, Alan Cross, a pastor and missional strategist with the Montgomery Baptist Association, wrote, “I am not a Muslim. I am an evangelical Christian minister in Alabama. But my religious freedom — everyone’s religious freedom — took a hit when my state decided that instead of slowing down to accommodate religious difference, the execution, which is final and irrevocable, had to go on as scheduled.” Pastor Cross stressed the value of religious diversity, saying “The solution to diversity is not to eliminate religious difference, but rather to work together to be fully who we are, to cultivate a society where religious belief is recognized and accommodated. Mr. Ray’s religious freedom mattered as much as anyone else’s. That freedom is part of what makes America great. When it is lost, it is replaced by a sterility and silence that will ultimately drive us apart.” In its own editorial, the New York Times editorial board called the Supreme Court ruling a “moral failure” that diminished Muslims and compounded the indignity of its prior acquiescence in the travel ban imposed by the Trump administration.

Georgia death-row prisoner Keith Tharpe (pictured, left) and Oklahoma death-row prisoner Julius Jones (pictured, right) are asking the U.S. Supreme Court to grant them new trials after evidence showed that white jurors who described the defendants with racist slurs participated in deciding their cases. The involvement of the racist jurors, the prisoners say, violated their Sixth Amendment rights to impartial juries. A juror in Tharpe’s trial gave a sworn affidavit years after voting to convict Tharpe, in which he wondered “if black people even have souls,” and said, “there are two types of black people: 1. Black folks and 2. N***rs." Tharpe, he wrote, “wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did." In Jones’s case, a juror told Jones’s legal team that another juror had said the trial was “a waste of time” and “they should just take the n***r out and shoot him behind the jail.”

Tharpe and Jones argue that two 2017 Supreme Court decisions, Peña-Rodriguez v. Colorado and Buck v. Davis, require the Court to reconsider their cases. In Buck, Chief Justice John Roberts declared for the Court that “the law punishes people for what they do, not who they are,” and overturned a death sentence imposed after a psychologist testified that Buck posed a greater risk of future dangerousness because he is black. The Chief Justice wrote that “discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice,” calling racism a “toxin[ that] can be deadly in small doses.” In Peña-Rodriguez, now-retired Justice Anthony Kennedy wrote for a five-justice majority of the Court that courts may consider a juror’s statement showing he had relied on racial stereotypes to convict a defendant as evidence of a Sixth Amendment violation.

In January 2018, the U.S. Supreme Court overturned a federal appeals court’s refusal to consider Tharpe’s racial discrimination claim.  Less than three months later, that court again refused to consider the issue, saying Tharpe had not previously presented it to the state courts. Jones has also repeatedly sought review of claims that racial discrimination has infected his case. He previously asked the Court to overturn his death sentence based on the findings of a 2017 study that showed significant racial disparities in Oklahoma’s death sentencing practices. On January 22, 2019, after having rescheduled consideration of Jones’s appel 25 times, the Court declined to review the case. Samuel Spital, who was co-counsel in Buck’s case and is lead counsel on the brief of the NAACP Legal Defense and Educational Fund’s friend-of-the-court brief supporting Tharpe, said of Tharpe and Jones, “We know that these two men are facing execution at least in part because they’re black. Under those circumstances, the state just doesn’t have an interest in enforcing a death sentence, and for that reason, the procedural obstacles that you would have with respect to certain other claims should not be part of the analysis.” The cases are considered a bellwether of the post-Kennedy Court’s commitment to racial justice.

Clemency, a film exploring the psychological toll of the death penalty, has been awarded the U.S. Grand Jury Prize for Drama at the prestigious Sundance Film Festival on February 2, 2019. The movie, written and directed by Nigerian-American filmmaker Chinonye Chukwu, tells the story of prison warden Bernadine Williams (portrayed by Alfre Woodard) as she prepares to oversee her 12th execution in the aftermath of a botched execution. Chukwu said she was inspired to write the script after the controversial execution of Troy Davis, a Georgia prisoner with serious claims of innocence, in 2011. “[T]he morning after [Troy Davis] was executed, so many of us were sad and frustrated and angry. And I thought, ‘If we’re all dealing with these emotions, what must it be like for the people who had to kill him? You know, what is it like for your livelihood to be tied to the taking of human life?’ And so, that was the seed that was planted, and it was a way for me to enter an exploration of humanities that exist between prison walls.”

Chukwu said she chose to focus on the perspective of the warden “to explore and challenge the system of incarceration,” and to broaden the reach and impact of the film. “I think it would really complicate people’s thinking around the death penalty and around incarceration and the humanities that are tied to incarceration, if it’s not told through the lawyer, through the defense attorney or through a protester, but somebody who is a part of the system, somebody who might embody the values that, you know, somebody who’s for the death penalty might embody,” she said. She conducted research for Clemency by meeting with death-penalty lawyers, death-row exonerees, and former wardens like Dr. Allen Ault, an outspoken critic of the death penalty. She also volunteered on a clemency campaign for Tyra Patterson, an Ohio woman who was a life sentence for a crime she says she did not commit. Patterson was paroled in 2017 after 23 years in prison.

In her speech accepting the Best Drama prize, Chukwu said she had made the film “so we as a society can stop defining people by their worst possible acts, that we can end mass incarceration and dismantle the prison-industrial complex, and root our societies in true justice and mercy and freedom, which is all tied to our joy inside, which nobody can ever incarcerate and execute.” Chukwu is the first Black woman director to win the Sundance Grand Jury Prize.

Idaho officials deliberately misled the public about the costs and application of the state’s death penalty and prison officials’ questionable efforts at obtaining execution drugs, according to evidence presented in week-long court hearings on the state’s execution secrecy practices. Testimony from January 28 through February 1, 2019 in an open-records lawsuit against the Idaho Department of Corrections has revealed that Idaho paid $10,000 in cash to an undisclosed drug supplier, maintained a set of fraudulent financial records related to execution expenses, falsely denied having records documenting contacts with a disreputable drug supplier in India, and hid from the public information as mundane as the hairdressers who give prisoners their final haircuts. The lawsuit was brought by the ACLU of Idaho on behalf of University of Idaho law professor Aliza Cover (pictured) after the IDOC refused to turn over numerous execution-related records to her in response to a 2017 public records request.

Relying on Idaho’s Public Records Act, Cover had sought copies of receipts, purchase orders, and other information related to the drugs Idaho used in its last two executions in 2011 and 2012 and those it expects to use in future executions. The department disclosed only a copy of the state’s execution policy manual, but claimed the remaining documents were exempt from public scrutiny. Cover, who studies the death penalty and its application, sued, asking the court to order the records disclosed. Even then, IDOC resisted. In actions ACLU attorney Molly Kafka characterized as “relying on speculation and fear rather than data,” IDOC redacted dozens of items from execution records, including not only the names of prison staff who participated in executions, but their handwriting, and the names of people only tangentially involved in executions, such as clergy who counsel death-row prisoners and hairdressers who give prisoners their final haircuts. The state claimed, without evidence, that the redactions were necessary to protect those individuals from protest, harassment, or violence. Similar claims of threats against execution team members in other states have been found to be unsubstantiated. Idaho officials also withheld information on the source of execution drugs used in the past, claiming that suppliers would no longer provide the drugs if their identities were revealed. IDOC falsely told investigative reporter Chris McDaniel that records he had requested did not exist. In fact, records showed that Idaho had contact with Chris Harris—a drug supplier in India who had obtained drugs from a European pharmaceutical company for medical use in Africa and then misappropriated them instead for sale for executions in the United States.

Testimony at the trial also revealed that IDOC’s secrecy efforts extended to fraudulent recordkeeping practices. According to a former Idaho Department of Corrections employee, IDOC kept three sets of financial books because the department “did not want to show a tremendous amount of money being spent for the execution as well as for the anonymity for those involved in it.” When a person would ask the IDOC for execution-related data, the first set of books would be given out. A second set of books would be provided if the person persisted. “So, the first set would be a lower amount to not represent the total of what was being spent, and the second one had a little higher amount just to show due diligence — that there was work being done to capture all the amounts,” the official said. According to the official, “the third was the actual set of books that would actually represent the expenses.”

Testifying during the trial, Cover said: “If the public is not able to have this information about those issues, [it] cannot come to a decision on its moral view about the punishment that is occurring.” In closing statements Monday, February 4, 2019, one of her lawyers said: “[IDOC’s] argument at this point is crystal clear — this information is so important that we can’t release it, because it would change the way we do things.” An editorial by the Idaho Press urged the state to end the secrecy: “In the end, the state of Idaho needs to be transparent about the drugs it’s using for lethal injections and about where they’re getting those drugs. We see no exemption in the public records law for protecting a relationship with a drug provider.”