Condemned Prisoner Asks U.S. Supreme Court to Stay His Execution Unless Texas Corrections Officials Permit His Religious Advisor to ​‘Lay on Hands’ While He is Being Put to Death

Texas death-row pris­on­er John Ramirez (pic­tured) is ask­ing the United States Supreme Court to stay his September 8, 2021 exe­cu­tion, argu­ing that the state’s refusal to allow his pas­tor to pray out loud with him and lay hands on him while he is being exe­cut­ed vio­lates fed­er­al law and his First Amendment right to free exer­cise of religion. 

In a peti­tion for writ of cer­tio­rari and appli­ca­tion for stay of exe­cu­tion filed in the high court September 7, coun­sel for Ramirez appealed to the Court to reverse a rul­ing by a divid­ed pan­el of the U.S. Court of Appeals for the Fifth Circuit that would per­mit Texas to move for­ward with the exe­cu­tion. Ramirez’s coun­sel argued that allow­ing his pas­tor to touch Ramirez at the time of his death — ​“when most Christians believe they will either ascend to heav­en or descend to hell … [and] reli­gious instruc­tion and prac­tice is most need­ed” — was cen­tral to his prac­tice of Christianity. ​“It’s part of my faith — there’s so much about the pow­er of touch,” Ramirez told the Marshall Project. ​“You bless some­one at the time of their most spiritual need.”

The cir­cuit pan­el deci­sion, issued at 12:59 a.m. on the September 6 Labor Day hol­i­day, unan­i­mous­ly reject­ed Ramirez’s claim that the First Amendment’s pro­hi­bi­tion against gov­ern­ment inter­fer­ence with the free exer­cise of reli­gion required Texas to allow his pas­tor to phys­i­cal­ly touch him dur­ing the exe­cu­tion. The pan­el split 2 – 1 on whether the state’s restric­tions on the pastor’s actions vio­lat­ed the fed­er­al Religious Land Use and Institutionalized Persons Act (“RLUIPA”).

In his dis­sent from the cir­cuit court’s opin­ion, Judge James Dennis wrote, ​“What pur­pose is there for allow­ing a spir­i­tu­al advi­sor, like a pas­tor, to be present in the exe­cu­tion cham­ber if that pas­tor is pro­hib­it­ed from attend­ing to the spir­i­tu­al needs of the con­demned dur­ing the final moments of his life, through audi­ble prayer, phys­i­cal touch, or oth­er­wise? At the end of life, what does a pas­tor do but min­is­ter to and com­fort his parishioner?”

Texas’s Vacillating Policies on the Presence of Spiritual Advisors in the Execution Chamber

Ramirez’s chal­lenge to the Texas Department of Criminal Justice’s restric­tions is the lat­est in more than two years of lit­i­ga­tion over state poli­cies that pris­on­ers say have denied them access to the com­fort of their own spir­i­tu­al advis­er in the execution chamber.

On March 28, 2019, the U.S. Supreme Court grant­ed a last-minute stay to a Buddhist death-row pris­on­er, Patrick Murphy, to per­mit him to lit­i­gate a claim of reli­gious dis­crim­i­na­tion based on TDCJ pol­i­cy that allowed Muslim and Christian pris­on­ers to have a spir­i­tu­al advi­sor present in the exe­cu­tion cham­ber but did not grant sim­i­lar access for pris­on­ers of oth­er faiths. The Court wrote that Texas ​“may not car­ry out Murphy’s exe­cu­tion … 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.”

Texas respond­ed by amend­ing its pro­to­col to exclude all reli­gious advis­ers from the exe­cu­tion cham­ber and resched­ul­ing Murphy’s exe­cu­tion for November 2019. Its revised pol­i­cy per­mit­ted chap­lains employed by TDCJ, but not oth­er reli­gious advis­ers, to remain with pris­on­ers until they entered the execution chamber.

A fed­er­al dis­trict court again stayed Murphy’s exe­cu­tion, say­ing that Murphy’s con­cerns about reli­gious dis­crim­i­na­tion in Texas’s pre-exe­cu­tion pro­ce­dures were ​“as com­pelling as those in [his] orig­i­nal com­plaint.” The Fifth Circuit upheld the stay and Texas did not appeal that ruling.

Then, in June 2020, Ruben Gutierrez asked TDCJ to pro­vide him a Christian chap­lain in the exe­cu­tion cham­ber, argu­ing that it was ​“a rea­son­able accom­mo­da­tion” nec­es­sary to per­mit him to exer­cise his reli­gious beliefs. Texas refused, and Gutierrez sought a stay of exe­cu­tion argu­ing that deny­ing him access to a reli­gious advis­er in the exe­cu­tion cham­ber vio­lat­ed the Free Exercise and Establishment Clauses of the First Amendment and sub­stan­tial­ly bur­dened the exer­cise of his reli­gious beliefs pro­tect­ed under the RLUIPA. The U.S. Supreme Court stayed Gutierrez’s exe­cu­tion one hour before he was sched­uled to die, direct­ing the dis­trict court to con­duct an evi­den­tiary hear­ing on Gutierrez’s claims.

Texas again respond­ed by amend­ing its exe­cu­tion pro­to­col on April 21, 2021, this time per­mit­ting a con­demned pris­on­er to be accom­pa­nied in the exe­cu­tion cham­ber by a spir­i­tu­al advis­er of his or her own choos­ing. However, when Ramirez request­ed that his pas­tor be per­mit­ted to pray out loud and lay hands on him dur­ing the exe­cu­tion process, TDCJ refused. Ramirez’s lawyer, Seth Kretzer said under the TDCJ restric­tions, Ramirez’s pas­tor ​“will not be allowed to speak in any way. He can­not pray aloud. He can­not sing a prayer. He can­not do any­thing in this room except basi­cal­ly stand in a cor­ner and breathe.”

Ramirez’s Religious Exercise Claim

Ramirez’s pas­tor Dana Moore began vis­it­ing Ramirez on the state’s death row in 2016, and the men have been in close con­tact for the last five years. ​“The pow­er of human touch is more than just phys­i­cal,” Moore has said about Ramirez’s case. ​“It’s the way God created us.” 

“When I pray with peo­ple, I put a hand on them. When I go to the hos­pi­tal, I hold the person’s hand. It’s what we do. It’s how we do things,” Moore told Christianity Today. ​“And that’s what John wants me to be able to do. To have me touch him. To have that sup­port. To have that type of blessing.”

Ramirez’s peti­tion in the U.S. Supreme Court argues that ​“the State’s deci­sion to allow Ramirez’s pas­tor to enter the exe­cu­tion cham­ber, but for­bid­ding the pas­tor from lay­ing his hands on his parish­ioner as he dies … [and] for­bid­ding the pas­tor from singing prayers, say­ing prayers or scrip­ture, or whis­per­ing prayers or scrip­ture, sub­stan­tial­ly bur­den the exer­cise of his reli­gion” in vio­la­tion of the Free Exercise Clause and Religious Land Use and Institutionalized Persons Act. 

Concurring in the pan­el deci­sion, Judge Patrick E. Higginbotham wrote: ​“While lethal injec­tion may seem straight­for­ward, the actu­al admin­is­tra­tion of the drugs and pro­nounce­ment of death is both del­i­cate and fraught with dif­fi­cul­ties as evi­denced by the respons­es of reg­u­la­to­ry bod­ies and the expe­ri­ence of this Court with mishaps in exe­cu­tion by lethal injec­tion. The Texas Execution Procedure demon­strates the logis­ti­cal com­plex­i­ties involved …. [T]he com­plex­i­ties attend­ing the admin­is­tra­tion of drugs in the exe­cu­tion pro­ce­dure and its fail­ures expose the risks of non-med­ical hands on the body of a per­son under­go­ing the procedure.”

Chief Judge Priscilla R. Owen also con­curred, writ­ing that ​“Ramirez has not point­ed to any juris­dic­tion in which spir­i­tu­al advi­sors are per­mit­ted to have phys­i­cal con­tact with a per­son while he or she is exe­cut­ed, or any juris­dic­tion that per­mits a spir­i­tu­al advis­er, while in the death cham­ber dur­ing the actu­al exe­cu­tion process, to talk to the pris­on­er or otherwise vocalize.”

In dis­sent, Judge Dennis wrote that Ramirez’s claim under the RLUIPA ​“impli­cates vital­ly impor­tant inter­ests, and, at this stage of the lit­i­ga­tion, he has made a strong show­ing that he is like­ly to suc­ceed on the mer­its.” Dennis said that ​“because the cur­rent pol­i­cy pro­hibits Ramirez from engag­ing in sin­cere­ly-held reli­gious prac­tices, it also impos­es a sub­stan­tial bur­den on his reli­gious exer­cise.” Under the RLUIPA, Dennis wrote, that fact requires Texas to show that its lim­i­ta­tions on reli­gious exer­cise are the ​“least restric­tive means” of advanc­ing a ​“com­pelling gov­ern­ment inter­est.” At the cur­rent stage of the lit­i­ga­tion, Dennis said, “[t]he State has not shown why its pol­i­cy of pro­hibit­ing even a brief audi­ble prayer and any phys­i­cal touch­ing is the least restric­tive means of achiev­ing its com­pelling inter­est [in secu­ri­ty] in this specific case.”

Ramirez told the New York Times that allow­ing Moore to touch him ​“would just be com­fort­ing” and ques­tioned why the court would refuse his request. ​“What will hap­pen? I’ll have a true spir­i­tu­al moment at the point of death and you don’t want me to have that?” he told the out­let. ​“You want to keep that from me, too?”