Texas Prisoner Receives Second Stay of Execution Over Religious Discrimination Issue

A federal district court has granted a stay of execution to a Buddhist death-row prisoner in Texas over allegations that the state is discriminatorily denying him access to religious services that would be available to Christian prisoners on the day of their execution. On November 7, 2019, the United States District Court for the Southern District of Texas stayed the November 13 execution of Patrick Murphy (pictured), marking the second time in 2019 that his execution has been stayed over allegations that Texas’ policies regarding religious advisors are discriminatory. The Texas attorney general’s office has appealed the order.

In March, the U.S. Supreme Court granted a last-minute stay to Murphy based on allegations that Texas allowed Muslim and Christian prisoners to have a spiritual advisor present in the execution chamber, but did not grant such access for prisoners of other faiths. The stay came less than two months after the Court was sharply criticized for reversing a stay of execution and permitting Alabama to execute Domineque Ray, a Muslim death-row prisoner who had not been permitted to have an imam present in the execution chamber in circumstances in which a Christian chaplain was provided to condemned Christian prisoners. At the time, Justice Brett Kavanaugh suggested two ways Texas could afford all religious equal treatment and avoid a religious discrimination violation: by permitting all condemned prisoners to have a religious adviser of their religion present in the execution chamber or by excluding religious advisers from the execution chamber altogether and providing equal access to a religious adviser in witnessing the execution.

Texas responded by excluding religious advisers from the execution chamber. However, Murphy alleged that the new policy continues to discriminate because the state allows Christian and Muslim chaplains, who are employed by the Texas Department of Criminal Justice, to remain with prisoners until the moment the prisoner enters the executions chamber and requires other spiritual advisors to leave the prisoner two hours before execution.

In the stay order, U.S. District Judge George C. Hanks Jr. wrote that the religious discrimination concerns raised by Murphy about Texas’ pre-execution procedures “are as compelling as those in [his] original complaint.” The state’s revised policy “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,” Hanks wrote. “If Murphy were Christian, he would have the benefit of faith-specific spiritual support until he entered the execution chamber; as a Buddhist he is denied that benefit.” Hanks temporarily halted Murphy’s execution, writing that a stay would provide the court “time to explore and resolve serious factual concerns about the balance between Murphy’s religious rights and the prison’s valid concerns for security.”

Texas’ Office of Attorney General filed a motion to vacate the stay in the U.S. Court of Appeals for the Fifth Circuit on November 8, 2019. Murphy filed his response on Sunday, November 9, supported by an amicus brief by the Becket Fund for Religious Liberty. As of publication, the circuit court had not ruled on the state prosecutor’s motion.

Murphy sought clemency in March 2019 on the grounds that he did not participate in the killing for which he was sentenced to death. Murphy was part of the “Texas Seven,” a group of prison escapees who robbed a sporting goods store. Murphy told the group’s leader, George Rivas, that he did not want to participate in the robbery, then waited outside the store in a truck, acting as a lookout. He radioed the others when he saw police approaching, then left the parking lot. After he left, his co-defendants shot and killed Officer Aubrey Hawkins. Under Texas’ “Law of Parties,” Murphy was eligible for the death penalty because he was involved in the robbery, even though he neither killed nor intended to kill Officer Hawkins.