Religion

In Act of ‘Christian Forgiveness,’ Tennessee Victim’s Daughter Asks Governor for Mercy for Her Mother’s Killer

A Tennessee murder victim’s daughter is asking Governor Bill Lee to honor their shared faith by sparing the life of her mother’s killer. In what they describe as an “exceptional” clemency plea, lawyers for Tennessee death-row prisoner Don Johnson (pictured) write that Cynthia Vaughn, the daughter of Connie Johnson, has requested a meeting with Gov. Lee to tell him her story of “Christian forgiveness” and ask that he commute Johnson’s sentence to life without parole. The clemency petition describes such a request as extremely rare, saying “[w]e know of only one other case in the history of the State of Tennessee in which the child of the ultimate victim has begged the Governor for mercy for the murderer – and in that case clemency was granted to Gaile Owens.” Johnson’s clemency petition also stresses his remorse and redemption, explaining that he has become an Ordained Elder in the Seventh Day Adventist Church and now ministers to his fellow prisoners. Vaughn and Johnson’s lawyers hope his story of Christian redemption will be of particular interest to Gov. Lee, whose campaign for governor in 2018 repeatedly emphasized his Christian faith.

In a letter to Governor Lee that is excerpted in the petition, Vaughn describes her change of heart about Johnson. For most of her life, she supported his execution, publicly saying, “I want the freak to burn.” However, in 2012, she sought a meeting with Johnson in prison to tell him about the pain he had caused her. “After I was finished telling him about all the years of pain and agony he had caused, I sat down and heard a voice. The voice told me, ‘That’s it, let it go.’ The next thing that came out of my mouth changed my life forever. I looked at him, told him I couldn't keep hating him because it was doing nothing but killing me instead of him, and then I said, ‘I forgive you.’” Forgiving Johnson, she said, has freed her from her anger and allowed her to live her life more fully. “Letting go of anger has let me love more,” she wrote.

Johnson’s religious conversion is the subject of much of the clemency petition and includes numerous testimonials about the positive effect he has had on other prisoners. It also details his personal journey from the routine beatings and psychological abuse he endured from his father and in the juvenile justice system to what the petition characterizes as his religious redemption. "What is most remarkable about Don Johnson’s life story is not that he ended up on death row following a loveless and hate filled childhood, it is that he overcame that childhood to become the man of God he is today," his petition states. Prison ministers and volunteers wrote in support of clemency, describing Johnson’s remorse and his impact on the lives of others. “Don has asked for forgiveness of his sins and crimes he committed years ago and by the grace of God has become a new person in Christ,” wrote Linda Faulk, a prison volunteer who has known him since 2004. “Donnie is no ordinary person and he has unusual perceptivity. I am aware that the prison uses his talents as a counselor and his unit has one of the best behavioral records in the State of Tennessee. Many people rejoice that he has served so well in spite of his environmental circumstances,” said Dr. John L. DuBosque, a visitor and telephone advisor of Johnson’s since 1998. Johnson’s petition concludes with a plea for a grant of mercy by the governor: “Cynthia Vaughn, the person with the greatest claim on his life, deserves to have her forgiveness honored. She should not have her own healing journey ended with an unnecessary and unwanted execution. Don Johnson should not have his journey from the darkness into the light ended in the death chamber.”

Commentators Question Why Supreme Court Stopped One Execution, But Not Another With Identical Religious Exercise Issues

Legal scholars and commentators across the political spectrum have criticized the U.S. Supreme Court for its seemingly contradictory actions, less than two months apart, in two nearly identical religious freedom claims from death-row prisoners. On February 7, 2019, the Court vacated a stay of execution and permitted Alabama to execute death-row prisoner Domineque Ray (pictured, left), who had claimed that the Alabama Department of Corrections was violating his First Amendment rights by refusing to allow his Muslim religious advisor in the execution chamber in circumstances in which the state permitted a Christian chaplain to be present for Christian prisoners. The following month, the Court issued a stay to Patrick Murphy (pictured, right), a Buddhist Texas death-row prisoner who had  challenged the state’s refusal to allow his Buddhist spiritual advisor in the execution chamber. Both states only permitted chaplains who are employed by their corrections departments to be in the execution chamber. Alabama only employed Christian chaplains and Texas employed only Christian and Muslim chaplains. The Court voted 5-4 to allow Ray’s execution to proceed, but halted Murphy’s March 28 execution with only two dissents.

The Court was widely criticized after Ray’s execution, leading some to theorize that the justices who changed their votes did so in response to concerns about the Court’s reputation. David French, writing for the conservative National Review, wrote of the Ray decision, "The state's obligation is to protect and facilitate the free exercise of a person's faith, not to seek reasons to deny him consolation at the moment of his death.” Liberal Yale Law professor Stephen Carter wrote, “In my 30 years of writing about religious freedom, I can't recall a case as outrageous.” Of the different decision made in Murphy’s case, law professor Ilya Somin wrote that the justices “belatedly realized they had made a mistake; and not just any mistake, but one that inflicted real damage on their and the court’s reputations. … Presented with a chance to ‘correct’ their error and signal that they will not tolerate religious discrimination in death penalty administration, they were willing to bend over backwards to seize the opportunity, and not let it slip away.” Attorney Deepak Gupta, who has argued before the Court, said, “This is how the Supreme Court tries to erase a very recent and obvious moral error without admitting error. Is the Alabama case materially different? They don’t say.” Spencer Hahn, who represented Ray, said he hopes his client helped draw attention to religious discrimination in the death penalty. “I’d like to think Mr. Ray’s death was not in vain,” he said.

Board Denies Clemency for Texas Man Convicted Under Law of Parties Who Was Not Present When Killing Occurred

The Texas Board of Pardons and Paroles denied clemency for Patrick Murphy (pictured) on March 27, 2019, moving the state one step closer to executing him on March 28 for a murder he neither committed nor intended to commit nor was present when it occurred. Murphy was convicted under the state’s “Law of Parties,” which allows defendants to be sentenced to death based upon the actions and intent of others, if the defendant played even a small role in a crime that resulted in someone’s death. Critics of the law argue that it violates the U.S. Supreme Court’s 1982 constitutional prohibition against executing a person who did not kill or intend that a killing take place and was a minor participant in an offense that resulted in a killing. Murphy was one of the “Texas 7,” a group of prisoners who escaped from prison in 2000. Days after their escape, the men planned to rob a sporting goods store, but Murphy told the group’s leader, George Rivas, that he did not want to participate in the robbery. Murphy waited outside the store in a truck, radioed the others when he saw police arriving, and drove away from the store to a nearby apartment complex. After he left, Officer Aubrey Hawkins was killed in a shootout with the other men.

In 1982, in Enmund v. Florida, the U.S. Supreme Court wrote that “the death penalty … is an excessive penalty for the robber who, as such, does not take human life.” The Court ruled that the focus of a capital punishment trial must be on the culpability of the defendant for his own acts, “not on that of those who committed the robbery and shot the victims.” Murphy’s court-appointed trial lawyer failed to object to the capital charges against him and his state-appointed post-conviction lawyer failed to raise trial counsel’s ineffectiveness, barring the issue from federal review. Murphy’s current lawyers asked the Texas Court of Criminal Appeals to reopen his case to consider the issue, but the court denied that request on March 25. They also sought clemency from the Texas Board of Pardons and Paroles. However, the Board rejected that request and an alternative request for a temporary reprieve until the state legislature acts on pending legislation that would eliminate the death penalty for people convicted under the law of parties. In a statement, his attorneys David Dow and Jeff Newberry said, “It is unconscionable that Patrick Murphy may be executed for a murder he did not commit that resulted from a robbery in which he did not participate, at the exact moment when lawmakers are considering whether anyone possibly convicted under Section 7.02(b) of the Texas Penal Code should be eligible for the death penalty.” Following the Board’s action, Murphy’s lawyer’s submitted a request for a one-time 30-day reprieve from Governor Greg Abbott “so that he is not executed before additional legislation is passed that would [make] clear convictions obtained in trials identical to his are not eligible for a sentence of death.” While that bill would not be retroactive to Murphy’s case, his lawyers wrote, there is “a substantial possibility” that if the bill passes, the state courts “would hold Mr. Murphy’s death sentence is unconstitutional.”

Murphy also has filed motions in the Texas Court of Criminal Appeals and the U.S. District Court for the Southern District of Texas in which his attorneys argue that Texas is violating the Establishment Clause of the First Amendment by refusing to allow Murphy’s Buddhist spiritual advisor to be present in the execution chamber instead of a Christian or Muslim chaplain. The Texas Department of Criminal Justice employs Christian and Muslim chaplains, who are allowed to be present in the execution chamber, but does not allow chaplains of other faiths, saying that they present a security risk because they are not employees. “A law or policy that is not neutral between religions, like TDCJ’s policy, is inherently suspect and strict scrutiny must be applied when determining whether the policy violates the First Amendment’s Establishment Clause,” Murphy’s attorneys wrote. A similar claim was raised before the Alabama execution of Domineque Ray, a Muslim prisoner who was not allowed to have his imam present at his execution. The state court denied his motion on March 25 and the federal court followed suit on March 27, both saying his claim was untimely filed. [UPDATE: On March 28, 2019, the U.S. Supreme Court granted Murphy a stay of execution “pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.”]

Pittsburgh Rabbi’s Wife Opposes Death Penalty for Tree of Life Synagogue Killings

Beth Kissileff (pictured), a writer and the wife of a rabbi who survived the shooting rampage that killed eleven worshippers at Pittsburgh’s Tree of Life synagogue, has asked the U.S. Department of Justice not to seek the death penalty against the man charged with committing those murders. In an opinion article for the Religion News Service, Kissileff wrote that she and her husband, Rabbi Jonathan Perlman of Pittsburgh’s New Light Congregation, engaged federal prosecutors and a social worker who had come to discuss the trial of the white supremacist accused of the act of domestic terrorism in “a discussion of Jewish concepts of justice.” Three members of the New Light Congregation were among those murdered in the synagogue. Rabbi Perlman, Kissileff wrote, told the prosecution team: “Our Bible has many laws about why people should be put to death. … But our sages and rabbis decided that after biblical times these deaths mean death at the hands of heaven, not a human court.” She writes, “if as religious people we believe that life is sacred, how can we be permitted to take a life, even the life of someone who has committed horrible actions?”

Kissileff bases her conclusion that a sentence of life without parole for the synagogue shooting is more appropriate than death both on Jewish teachings against the death penalty and on her hope that the killer might yet change his white supremacist beliefs. She wrote in an article for The Jerusalem Post that “[w]hen Jews are killed just for being Jewish, we commemorate them with the words ‘Hashem yikom damam,’ may God avenge their blood. This formulation absents us from the equation since it expresses that it is God’s responsibility, not ours, to seek ultimate justice. As humans, we are incapable of meting out true justice when a monstrous crime has been committed.” She explains that, although the Torah calls for a death sentence for some crimes, Jewish tradition teaches that death sentences should be very rare, if they are allowed at all. She writes that “a Jewish court is considered bloodthirsty if it allows the death penalty to be carried out [even] once every 70 years.”

Though recognizing that repentance is rare, Kissileff said nonetheless “[t]here is always a chance for redemption. Calling for the death penalty means there is no possibility for the shooter to repent, to change or to improve. I would rather not foreclose that possibility of change, slim as it may be, by putting someone to death.” She recounted the cases of white nationalists Derek Black, who renounced his hatred of Jews after being invited to Shabbat dinners by Jewish students at his college, and Arno Michaelis, a former skinhead leader who later co-authored a book on forgiveness with a man whose father was among the seven congregants murdered in a hate attack on a Sikh temple in Wisconsin. Referring to these examples, Kissileff said “[n]either [man] might have been expected to change their beliefs, and yet they have.”

Kissileff’s articles describe the legacy of those who were killed in the Pittsburgh attack and how the shooting has inspired others to become more involved in the synagogue and to learn more about their Jewish faith: “Creating more knowledge of what Judaism and Jewish values are, and encouraging more Jews to commit to them, is the most profound way to avenge their blood.” She writes that, “rather than seeking the shooter’s death,” a better response for Jews would be “strengthening other Jews and Jewish life in Pittsburgh and around the world. Doing so will mean that Jews, not forces of evil, have the ultimate victory.” She concludes: “The most important vengeance for the murder of 11 Jews or 6 million is for the Jewish people to live and the Torah to live, not for their killer to die.”

Supreme Court’s Intervention to Allow Execution of Domineque Ray Provokes Widespread Condemnation

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.

Alabama Executes Muslim Prisoner Amidst Charges of Religious Discrimination

In a 5-4 decision that Justice Elena Kagan characterized as “profoundly wrong,” the U.S. Supreme Court on February 7, 2019 permitted Alabama to execute a Muslim death-row prisoner, Domineque Ray (pictured), who had claimed that the state’s execution process discriminated against him because of his religion. Without explanation, the Court asserted that Ray had waited too long to challenge a provision in Alabama’s execution protocol that made a Christian chaplain part of the state’s execution team and prohibited other religious advisors from being present in the execution chamber. Ray argued that Alabama’s practice constituted an establishment of religion that discriminated against non-Christians. During federal court hearings on the constitutionality of the policy, Alabama withdrew its requirement that the chaplain be present in the execution chamber. However, it continued to reject Ray’s request that his imam—a prison-approved spiritual advisor—be permitted in the execution chamber. The U.S. Court of Appeals for the Eleventh Circuit ruled that Ray was likely to succeed on his religious discrimination claim, scheduled briefing in his case, and stayed his execution. The Supreme Court reversed, without addressing the constitutional issue.

Justice Kagan, joined by Justices Breyer, Ginsburg, and Sotomayor dissented. Quoting prior Supreme Court decisions, Kagan wrote, “‘The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.’ But the State’s policy does just that. 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.” In asserting that its execution process complied with constitutional guarantees of religious freedom, the Alabama Attorney General’s office told the federal courts: “Like any other inmate, Ray has been and will be given opportunities to speak with his spiritual adviser, including up to the moment that he is taken into the chamber.” However, Spencer Hahn, one of Ray’s lawyers, said the prison had failed to honor that promise and that Ray lost access to his imam three hours before the execution.

Ray was convicted and sentenced to death for the rape and murder of a 15-year-old girl. No physical evidence linked him to the crimes and a sole prosecution witness, Marcus Owden, implicated Ray. In 2017, Ray’s appeal lawyers discovered for the first time that Owden—who avoided the death penalty by testifying against Ray—had schizophrenia and was suffering from delusions and auditory hallucinations when he accused Ray of the rape and murder and testified against him. Ray’s lawyers argued that the prosecution’s deliberate suppression of this evidence, despite being aware of Owden’s mental illness, violated Ray’s due process rights and entitled him to a new trial. Without comment, the Supreme Court declined to review the claim and denied a stay. Ray was the second person executed in the U.S. in 2019 and the first in Alabama.

NEW PODCAST: DPIC’s 2018 Year End Report

In the latest podcast episode of Discussions with DPIC, members of the DPIC staff discuss key themes from the 2018 Year End Report. Robert Dunham, Ngozi Ndulue, and Anne Holsinger delve into the major death-penalty trends and news items of the year, including the “extended trend” of generational lows in death sentencing and executions, election results that indicate the decline will likely continue, and the possible impact of Pope Francis’s change to Catholic teaching on capital punishment. They explore the reasons for reduced death-penalty usage, highlighting the stories of people who were exonerated in 2018, the theme of executing people with characteristics that make them vulnerable to unfair legal proceedings, and the ongoing controversy surrounding execution methods.

DPIC Executive Director Robert Dunham noted the importance of the shrinking death-row population, saying, “Death row is declining in size even as the number of executions is declining, which suggests that the decline is a result of the erosion of capital punishment, as opposed to it actually being carried out.” He explains the lack of death sentences in several traditional death-penalty states, including Virginia, North Carolina, South Carolina, and Georgia. “The biggest change is the availability of quality indigent defense,” Dunham said, adding that the adoption of life without parole as a sentencing option has also been a major contributing factor.

Dunham addresses the theme of inadequate legal process, saying that the current system fails to ensure that prisoners’ constitutional rights are fully upheld. “If we want the death penalty in the United States, ... it’s imperative that it be able to accurately assess whether somebody was fairly tried, whether somebody was fairly sentenced, and whether the individual deserves to live or die,” he said. Those procedural failures, and the secrecy that surrounds executions, have created a “distrust” among the public that Dunham predicts with have a “prolonged and lingering effect.” “In 2018, death sentences were down, executions were down for a variety of reasons, but I think one of the reasons that’s going to last and contribute to a continued reduction in the future is that more and more people think that we can’t trust the states to carry it out,” Dunham concluded.

DPIC PODCAST: The New Catholic Teaching on the Death Penalty and Human Dignity

In August 2018, Pope Francis promulgated a new Catholic Catechism that deemed the death penalty “inadmissible” in all cases and committed the Church to working to abolish capital punishment worldwide. Cardinal Blase Cupich, the ninth Bishop of the Archdiocese of Chicago, joined DPIC Executive Director Robert Dunham on the latest episode of the podcast Discussions with DPIC, to explore the implications of the new teachings and how they fit into the Church’s broader message on social justice and the sanctity of life. Saying “human dignity is at center of all we say and do,” Cardinal Cupich stressed that church leaders working to end capital punishment “have to make the case for human dignity just as forcefully as we do in other areas,” for the poor, for refugees, for the marginalized, and for the unborn. “All of the advocacy that we do for all of these people has to have a social or civic or political dimension to it,” the Cardinal explained. The continued use of the death penalty is “a stain on our country,” he said. “Let’s be honest. No life that was taken away can ever be replaced by taking away another life. We cannot teach that killing is wrong by killing.”

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