The Texas Department of Criminal Justice (TDCJ) has amended its execution protocol to permit a condemned prisoner to be accompanied in the execution chamber by a spiritual adviser of his or her own choosing.

The protocol amendment, adopted on April 21, 2021, follows two years of litigation over TDCJ policies that had denied condemned death-row prisoners access to the comfort of their own spiritual adviser in the execution chamber. The TDCJ’s prior policies had drawn fierce opposition across the political spectrum, uniting civil rights opponents of government establishment of religion and conservative advocates of the free exercise of religion. The new policy overcomes a hurdle of the Department’s own creation that had caused the U.S. Supreme Court to halt the executions of Texas death-row prisoners in 2019 and 2020.

Under the new policy, death-row prisoners may be accompanied into the execution chamber by their personal religious adviser, who may minister to the condemned prisoner during the execution. TDCJ also requires that the advisers be verified and pass a background check.

The Rev. Rick McClatchy, field coordinator of the Cooperative Baptist Fellowship of Texas, praised the protocol amendment: “I belong to a faith tradition which values the practice of ministering to the executed,” he said in a statement issued after the amendment was released. “It was Jesus who modeled this type of ministry to the men being executed with him. My American civic values also lead me to believe that even those condemned to death and the faith leaders who advise them are guaranteed the right to the free exercise of religion.”

“I don’t think Texas was animated by a spirit of humanity,” Death Penalty Information Center Executive Director Robert Dunham told the Associated Press. “But [TDCJ] clearly understood that this was a way to make executions happen,” he said.

The Texas DCJ Response to Religious Discrimination Claims in Texas Executions

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.”

In an opinion concurring in the stay, Justice Brett Kavanaugh suggested two ways Texas could afford condemned prisoners of all religions equal treatment, avoid a religious discrimination violation, and carry out executions. States, he said, could “(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.”

Texas responded by amending its protocol to exclude all religious advisers from the execution chamber. Nearly 200 Texas faith leaders then sent a letter to TDCJ seeking reconsideration of the decision. The new protocol, they wrote, “plac[es] a wall between a prisoner and clergy [and] violates the religious liberty that has characterized our nation since its founding.”

Texas then rescheduled Murphy’s execution for November 13, 2019. However, the new policy continued to favor chosen religions, Murphy argued, because it permitted Christian and Muslim chaplains employed by TDCJ to remain with prisoners until the moment the prisoner entered the execution chamber while requiring other spiritual advisors to leave the prisoner two hours before execution.

On November 7, 2019, the U.S. District Court for the Southern District of Texas stayed Murphy’s execution to permit discovery and an evidentiary hearing on Murphy’s claim that Texas denies non-Christians equal access to religious advisors during the execution process and Texas’s assertion that allowing non-TDCJ spiritual advisers in the execution chamber posed security concerns. In granting the stay, Judge George C. Hanks Jr. found Murphy’s concerns about religious discrimination in Texas’s pre-execution procedures “as compelling as those in [his] original complaint.” The state’s revised policy, he said, “still favors some religions over others because TDCJ-employed chaplains, who are all Christian or Muslim, have greater access to the condemned than non-TDCJ employee spiritual advisors.”

“If Murphy were Christian,” Hanks wrote, “he would have the benefit of faith-specific spiritual support until he entered the execution chamber; as a Buddhist he is denied that benefit.” A split panel of the Fifth Circuit upheld Hanks order the day before his scheduled execution and state prosecutors did not seek Supreme Court review.

Next, Texas scheduled the execution of Ruben Gutierrez for June 16, 2020. Gutierrez, a Christian, 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. When Texas refused, he 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 by a 2000 act of Congress, the Religions Land Use and Institutionalized Persons Act (“RLUIPA”). The District Court issued a stay on June 9 that was vacated three days later by the Fifth Circuit.

One hour before Gutierrez was scheduled to die, the U.S. Supreme Court stayed his execution pending the court’s disposition of Gutierrez’s petition to review his religious discrimination claim. Texas had argued that permitting a prison chaplain to be present for Gutierrez’s execution posed security concerns, notwithstanding the fact that it had permitted its chaplains to be present at executions for decades without incident. The Supreme Court directed the U.S. District Court for the Southern District of Texas, where Gutierrez had filed his religious discrimination complaint, to “promptly determine, based on whatever evidence the parties provide, whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.”

Eight months later, on February 11, 2021, the U.S. Supreme Court let stand a federal appeals court injunction prohibiting Alabama from executing Willie B. Smith III unless the state permitted Smith’s pastor to be present to provide him religious comfort in the execution chamber. Alabama then announced that it was calling off the execution. Dissenting from the decision halting the execution, Justice Brett Kavanaugh, noting the stays for Smith and Gutierrez, wrote: “it seems apparent that States that want to avoid months or years of litigation delays because of this … issue should figure out a way to allow spiritual advisors into the execution room, as other States and the Federal Government have done.”

Texas’s new procedures responded to Justice Kavanaugh’s concerns and obviated the need for Texas to prove that the policy it had in effect over the course of hundreds of executions prior to Patrick Murphy’s case would now pose a security threat.