Texas Revises Execution Protocol to Permit Spiritual Advisers in Death Chamber

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.