//  4/17/19  //  In-Depth Analysis

Much has been written about the Supreme Court’s recent horrifying decision in Bucklew v. Presythe. (For a sampling, see here, here, here, here, and here. I also touched on one aspect of the decision in this earlier post.) Bucklew is the decision that held the state could execute a man who, given his particular medical condition, might experience excruciating pain and suffering from the state’s chosen method o execution.

I wanted to focus on a narrower but still horrifying aspect of the decision—the Court’s insistence in Bucklew on relitigating and more importantly, reaffirming, its decision in Dunn v. Ray. Even when the Court obviously retreated from Ray in one instance (in the stay application in Murphy v. Collier), it has insisted on defending and distinguishing Ray. That should raise serious concerns about the direction of the Court.  

By now, most people are familiar with the underlying facts of Ray. Alabama had a policy that permitted only prison-employed religious chaplains to accompany prisoners into the execution chamber. (Other chaplains could walk with a prisoner up until the chamber itself.) But the particular Alabama prison employed only a Christian chaplain. Dominique Ray, a black, Muslim man, requested permission to have an imam accompany him into the execution chamber. The state denied his request, after which Ray filed suit. Ray argued, among other things, that the prison’s provision of only Christian chaplains violated the First Amendment’s protections of religious liberty and constituted religious discrimination.  The U.S. Court of Appeals for the Eleventh Circuit stayed his execution to give him time to raise that claim.

The Supreme Court reversed that stay, allowing Alabama to execute Mr. Ray without a religious counselor of his denomination. In a powerful dissent, Justice Kagan called the majority’s decision “profoundly wrong.”

The one clue the 5 Justices in Ray gave about their reasoning was in a parenthetical quoting another case for the proposition that “A court may consider  the  last-minute  nature  of  an  application  to  stay execution in deciding whether to grant equitable relief.” In other words, Ray should have sought relief earlier from the court.

As Justice Kagan said, and as I wrote previously, it was very odd to say that Ray waited too long to challenge Alabama’s decision not to afford him an imam. In an earlier post, I noted:

But when could Mr. Ray have brought that claim that the state would violate the constitution if it did not allow an imam to accompany Mr. Ray to the execution chamber?  As Justice Kagan explained in her powerful dissent—and as the district court found—the state denied Mr. Ray’s request for the imam to accompany him into the chamber on January 23rd; Mr. Ray challenged the state’s decision on January 28th when his execution was scheduled for February 7th. Five days is certainly not that long a time; and challenging an execution more than a week in advance is hardly a last-minute request.

The Supreme Court majority’s decision to fault Mr. Ray for the delay has to rest on one of several conclusions—some legal, and some factual, but all of which are questionable.

One rationale for the Court’s decision could be that Mr. Ray should have brought his claim when he should have known that the prison would deny his ability to have an imam present, rather than when he actually knew that the prison would deny his request to have an imam present.  One can reasonably question if that is the right standard to use in these circumstances, which involved a capital case involving a particularly strong claim of religious liberty.  Why not, under those circumstances, start the clock at the moment when the prisoner actually knows his request was denied?

A choice to focus on when Mr. Ray should have known that the prison would deny his ability to have an imam present is also an odd standard to impose on prisoners sentenced to death under these circumstances, and it would have been an odd application of that standard to conclude that Mr. Ray should have known what the prison was going to do earlier. The text of the statute/regulation does not distinguish between different religious counselors, or indicate who the prison had on staff by way of religious counselors who could accompany someone to the execution chamber.  So how do the majority or the district court think that Mr. Ray should have earlier realized what the prison would do?  Perhaps they think that prison guards would have informed Mr. Ray, if they saw something similar occur in prior executions.  That seems … unlikely to me, or at least it is not sufficiently clear that it is more likely than not that Mr. Ray would have known about this policy earlier.  Or perhaps the majority thinks that Mr. Ray would have heard about this from other prisoners who were subjected to this policy on their way to the execution chamber, or had their requests previously denied?  Again, there is very little to be confident about that inference either—it is not clear when, if ever, that happened previously, or when, if ever, Mr. Ray would have found out about it.

So what we have is a Court that selected a less favorable legal standard—and perhaps an unrealistic legal standard—to hold a capital prisoner to; then applied that legal standard to reach a factual conclusion that is at least very poorly substantiated.

It gets worse. In Murphy v. Collier, the Supreme Court stayed the execution of a prisoner who requested a spiritual adviser accompany him into the execution chamber. The state allowed Christian advisers to accompany prisoners into the execution chamber, but Patrick Murphy was a Buddhist who wanted a Buddhist spiritual adviser.  The Supreme Court said that Murphy deserved a chance to prove that the state’s failure to provide him one violated the Constitution’s protections for religious liberty. Only Justices Gorsuch and Thomas noted their dissents. Justice Kavanaugh wrote an odd and unpersuasive (more on that later) concurrence suggesting that Murphy filed his request for a stay in a sufficiently timely matter, unlike Mr. Ray.

After Murphy came Dunn v. Price, in which the Court vacated a stay of another Alabama execution, again apparently on the ground that the prisoner should have challenged earlier the state’s method of execution, and again over an impassioned and powerful dissent, this time from Justice Breyer. As I wrote in my prior post on the post-Ray capital litigation developments:

[I]n Price, the only reasoning in the order itself is that the prisoner waited too long to challenge the state’s method of execution. (The Court quoted the same language it did in Ray: A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”)

As in Ray, there was a dispute in Price about the nature of the state’s execution processes. The prisoner in Price argued that the state could execute him using a less painful method, and cited what turned out to be the state’s “preliminary” report that found his proposed method of execution was, indeed, less painful. The court of appeals vacated the district court’s stay of execution because the report was preliminary, but it turned out the state actually did have a final version of the report (which contained the same conclusion), and so the district court re-entered a stay (which, again, had only been vacated because of uncertainty about the state of the state’s bureaucratic processes governing its execution protocols). 

In Price,Justice Breyer also noted that there was considerable uncertainty about when inmates actually received the forms that allowed them to select the alternative method of execution that Price sought: “[I]t appears no inmate received a copy of the election form (prepared by a public defender) until June 26, and the State makes no representation about when Price received it other than that it was ‘before the end of June.’ Thus, it is possible that Price was given no more than 72 hours to decide how he wanted to die.”

Finally, in Bucklew, the Court insisted on relitigating  -- and reaffirming—its decision in Ray, despite the fact that doing so was utterly unnecessary to its opinion. Bucklew contained an entirely gratuitous and unnecessary section of the opinion that chastised prisoners and courts for litigating and adjudicating constitutional claims that delay executions. And the Court approvingly cited its stay order in Ray as an example of how courts can—and presumably should!—avoid undue interference with state executions from last minute prisoner requests.

Justice Sotomayor called out the majority for this aside. In a footnote she said:

A skewed view of the facts caused the majority to misapply these principles and misuse its “equitable powers,” see ante, at 30, and n. 5, in vacating the Court of Appeals’ unanimous stay in Dunn v. Ray, 586 U. S. ___ (2019). Even today’s belated explanation from the majority rests on the mistaken premise that Domineque Ray could have figured out sooner that Alabama planned to deny his imam access to the execution chamber. 

Given that the Court in Bucklew apparently wants to double down on its decision in Ray, let’s do that.

The facts of the two cases (Murphy and Ray) are strikingly similar, despite the Justices attempt to put some space between them. Mr. Murphy’s lawyers referred to the two cases as “the same” several times in their filing to the Supreme Court.  In both cases, the states had policies that allowed only prison-employed counselors into the execution chambers, and both prisons employed only Christian counselors. In both cases, the prisoners requested permission for religious counselors of their own denominations to accompany them into the execution chambers, and the states said no.

And the timing of the two cases is similar too, again despite Justice Kavanaugh’s suggestion that they are distinguishable on those grounds. (Justice Kavanaugh wrote separately to suggest that Mr. Murphy raised the claim in a timely manner, and the implication is that Mr. Ray did not.)   In both cases, the states maintained that the prisoners had delayed too long in seeking stays. (Mr. Ray filed a federal civil rights complaint more than a week before his scheduled execution. Mr. Murphy filed a federal civil rights complaint two days before his scheduled execution; he had previously filed a motion in state court “[a]bout two weeks before his execution date.”)


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