Leaving Ray Comfortless

I am horrified. Apparently “religious freedom” is an empty phrase when it comes to Death Row.

Let’s recap the insane saga in the State of Alabama over the last week. Domineque Ray is a Muslim inmate on Death Row, with an execution scheduled for today. Late in January, as the State started walking him through execution procedures, Alabama informed him that a Christian chaplain was required to be in the room with him at death, but his Muslim Imam would be barred.

Ray sued within days, asking for access to an Imam. The trial court said no. Yesterday, the 11th Circuit Court of Appeals said “maybe, let’s hold off on the execution for 3 weeks while we evaluate what looks like an incredibly strong First Amendment / prison religious freedom claim.”

Late this evening, the U.S. Supreme Court reversed the 11th Circuit, 5-4. It said Ray’s request came too late — even though yesterday the 11th Circuit found he had sued immediately upon learning about Alabama’s (unconstitutional) Christian-only rule.

Ray will be executed tonight.

The five “conservative” justices who voted to kill Ray tonight include four Catholics and an Episcopal (raised Catholic). They’re viewed as pro-life. They’re viewed as pro-religious freedom. They’re viewed as skeptical of government power.

But apparently all those principles get thrown out the window when a Muslim man makes a humble request not to avoid execution, but simply to have his spiritual guide from the last decade in the execution chamber as he dies.

I don’t believe Justices’ views should be governed by religion.  Yet many commentators nonetheless point to the Conservatives faith to explain their “pro-life” stance. I’ll simply point out here that Catholic pro-life doctrine extends to utter condemnation of the death penalty.

Tonight, there was a clear legal path forward towards compassion and religious tolerance of Ray’s dying wish. The Eleventh Circuit saw it. Three Jews and another Catholic on the Supreme Court saw it. All the other five Justices had to do to do good today was to do nothing.

If your professed legal commitment to religious freedom can’t make room for an Imam in an execution chamber, I’m skeptical that you believe in religious freedom at all.

Tonight, I pray for peace and comfort for Domineque Ray.

Comments

  1. I am truly speechless.

  2. Kevin Barney says:

    That’s bonkers…

  3. While you pray for his peace and comfort, I’ll pray for the family of the 15 year girl whose throat he cut after raping her.

  4. Aaron: it’s possible to pray for both. Christ does.

  5. I truly didn’t think it would turn out like this. I truly thought the “conservatives” on the Supreme Court would defend religious freedom. Amazing.

  6. The policy of allowing a chaplain who is of one faith and not allowing a spiritual adviser of another faith clearly violates the Establishment Clause. Having said that, some further facts that help explain this decision:

    The chaplain originally was permitted (required) to be in the chamber not because he was Christian, but because he was an employee of the prison. Another Christian spiritual adviser would similarly be barred from the room.

    Now, that policy has a bunch of problems in and of itself. It would be a great issue for the court to rule on…if it had been a live issue when it got to the Court. But Alabama had agreed that the chaplain didn’t have to be in the room, rendering the Establishment Clause issue moot.

  7. This seemed like a crazy decision from what you wrote, so thought there had to be more, or at least I hoped. Turns out the decision does seem pretty reasonable to me. see here

    “To accommodate Ray’s stated beliefs and the Establishment Clause, the ADOC has amended its protocol and will no longer allow the prison chaplain, or any other spiritual adviser, in the execution chamber,” Alabama’s emergency motion to SCOTUS stated. “Like any other inmate, Ray has been and will be given opportunities to speak to his spiritual adviser, including up the moment that he is taken to the chamber. His imam will be allowed to be present, if Ray wishes, albeit in the adjacent viewing room.”

    “In court documents, Ray said prison officials told him the Christian prison chaplain was required to be in the death chamber, which Ray did not want. Prison officials later agreed to remove the chaplain for his execution.

    ADOC maintains that allowing an outside spiritual adviser, not a trained prison employee, into the execution chamber would be a security threat to the execution process.”

    And given that this man lived for 24 years after his murder and rape crimes, and only filed in the last moments possible, all of this seems actually very accommodating.

  8. Dsc and SteveLHJ are wrong in their conclusions. No court has held that the Establishment Clause issue was moot. The Supreme Court’s bare-bones order was based, it seems, on the procedural question of when the application for stay was filed–not on mootness. The Eleventh Circuit appellate panel was aware of the circumstances that Dsc and SteveLJH describe, but they unanimously issued a stay. The Circuit Court judges wrote that it is “substantially likely” that Alabama violated the Establishment Clause in this case. The five Supreme Court justices who voted for death did not address the issue at all.

  9. One more thing. Consider the argument that Alabama is making. Alabama says that it has solved the problem of not having a Muslim chaplain present by removing the possibility of having any chaplain present. If the condemned man doesn’t want a Christian chaplain, then he can’t have any chaplain at all. (That will teach him!)

    The cynicism and savagery of this argument is horrifying. Simply taking away people’s privileges is not typically the way to remedy constitutional problems, especially in situations involving life and death. It disgusts me that these five Supreme Court justices would not let the normal judicial process play out in considering this question.

  10. Loursat, I’m not sure what you’re referring to as wrong. I quoted from the article I linked to. My understanding is that they partly agreed with Domineque Ray and changed the protocol so the prison chaplain would no longer be there. They did not see it reasonable for safety reasons to let a non-employee directly in the chamber, but allowed that an Imam could be present with him up until entry into the chamber, and furthermore could remain present in the adjacent viewing room during the execution process.

    That to me seems very reasonable, particularly for a man the raped and murdered a 15-year-old girl, and murdered 2 other people as well, and has spent the last 24 years in prison knowing about the pending execution, only to file this in the last minute.

    I have a hard time seeing how this is not entirely reasonable, and given its last minute nature and who this person was, I don’t think spending more time and legal resources to accommodate whether the Imam got to be on this or that side of the window for his execution really made sense. I think the majority of the Supreme Court justices got it right.

  11. Steve LHJ, it looks like we posted at the same time. I think my comment of 11:29 responds to the gist of yours at 11:29.

  12. Yeah, I’m just not seeing it. If someone rapes and murders somebody and it is proven beyond doubt, I’m perfectly fine with them being executed without any accommodation at all. There is nothing “horrifying” to me about how this man was treated at all, I think he was more than accommodated for given the crimes. If we want to talk about a general policy moving forward that sees the religious protocols treated the same across the board, yeah of course I’m all for it. But given the gravity of the crime, spending time and resources arguing whether a religious figure should be allowed to watch on one side of the window or not, particularly if there are security concerns involved, should in no way be a show stopper, imo.

  13. I guess you’re right. The show must go on.

  14. “I’m skeptical that you believe in religious freedom at all.”

    I mean, it’s adorable to pretend that this is even an active question anymore. It has long been fully demonstrated and settled that the shout of “religious freedom” has only ever been a pretextual cover for the supposed right of bigots to discriminate and oppress in ways that would (and should) be unacceptable. (And yes, I include Cake Shop in that judgement. :-) )

  15. Steve, you are wrong. Your comment takes the attitude that religious freedom is just not a right that criminals possess. That’s incorrect. I have no reason to doubt that this man was guilty of what he was convicted of, but that’s irrelevant to whether it is constitutional for the state of Alabama to give Christians a spiritual leader to be there for their last moments and deny others that same right.

  16. Make no mistake, this is not about security. That’s always a prison’s default universal justification for anything and everything. This is about Alabama recognizing Christianity as the state religion and five supreme court justices who claim to care about religious liberty letting it do so, but hiding their approval of Christianity as the state religion behind a false veneer of procedural nicety. We are taking away a man’s life. The absolute least we can do is let him have his spiritual leader present. It would be so easy to clear the imam through security, if security were the real concern. It’s not. Consider that the state of Alabama spent a lot more in attorney fees fighting this than it would have cost to just clear the imam through security. The security concern is a transparent lie.

  17. JKC,

    I’m interested in your apparent ability to read the hearts and minds of the Alabama prison system and a majority of the Supreme Court. I don’t know how you can difinitively conclude that the ability to pick who is in the room for your execution doesn’t leave a substantial risk that the person will interfere with the execution.

    Again, Ray didn’t make the legal argument that he had an absolute right to have his imam in the room. He made the facially reasonable argument that allowing the prison chaplain in the room gave some inmates a religious privilege that was unavailable to inmates who did not consider the chaplain an adequate spiritual adviser (the reasonability of that argument under the circumstances is another issue). By removing the chaplain, the prison removed the inequality. It’s not the first time that an Establishment Clause issue has been resolved by removing the religious element entirely from a state act (see, e.g. school prayer).

    Loursat, I should have been clearer. No, the Court did not rest its argument on mootness. It rested its decision on a procedural issue on which it sided with the district court. The factual question of whether Ray knew or should have known long before a week and a half before his execution that the chaplain would be present rested with the district court. I don’t think that the 11th Circuit adequately demonstrates that the district court erred in its conclusion that the chief complaint was brought too late. Even assuming that Ray had not reasonably been able to discover that the chaplain would be in the room, the narrow aspect of the policy that was in fact the subject of Ray’s complaint was in fact addressed. More importantly, it is dubious that neither Ray nor his legal counsel, who undoubtedly had known the circumstances of prior executions, did not find this out until the eleventh hour.

  18. The Establishment Clause problem still exists because all future Christian Death Row inmates will still have access to a Christian chaplain, and all future non-Christian Death Row inmates won’t. I expect to see approximately a dozen lawsuits filed within weeks from non-Christian inmates in Alabama raising the same challenge on the merits. I pray they succeed.

  19. The notion that “the gravity of the crime” justifies discrimination, coupled with the light-minded calling of a stay of execution “a show stopper,” as expressed by one commenter, is disgusting and should not be passed over as if anyone approved of it. If blogging allowed blocking the way Facebook does, I would never again be made aware of the existence of that commenter.

  20. Amen, Carolyn.

  21. Dsc, I’m not reading their hearts and minds, just their plain actions. The problem with the “we removed the chaplain for everybody” argument is that it arguable removes the violation for future executions, but it doesn’t remedy it for claims that have already been filed. And the majority knew that; that’s why they didn’t even bother with that argument or any other argument on the potential merits of the claim and rested entirely on an absurdly truncated notion of timeliness.

  22. I agree, Ardis. Some Americans may blur the line between civilization and barbarity with their unrelenting support of the death penalty as it is, but there remains a line—the state’s role in criminal justice is not visiting arbitrary torment on evildoers.

  23. Amen, Carolyn. Amen, Ardis.

  24. https://platform.twitter.com/widgets.js

  25. Dear Dsc and Steve LHJ:

    https://platform.twitter.com/widgets.js

  26. The person he rAped and murdered didn’t get to have her clergy there.

  27. Ardis, that seems extremely harsh, especially given the remainder of everything I wrote was I think quite measured and well-thought-out, although I do recognize that particular phrase was an ill use of words and realized it as soon as I pushed send. I invite you to visit my blog and get a better feel for who I am, I imagine we’d rather get along in real life.

    I do find it odd that so many commenters seem to think of themselves as unbiased arbiters of moral truth while simultaneously assuming the majority of Supreme Court justices are acting based on bigotry and corrupted ulterior motives. Corruption is possible, but to unequivocally state they (and I) are wrong, and assume you have all the knowledge and qualification to know the right thing comes across as not only arrogant, but bordering on conspiracy-like thinking imo.

    Genuine question and thought experiment, if the situation were reversed and a Christian man raped and murdered a young girl and murdered multiple people in a predominantly Islamic country, spent 24 years on death row, appealed to the court last minute which they decided to hear, they agree to remove the Islamic religious figure and allow a non-employee Christian minister to stay with him up until he enters the execution chamber, and further allow this same Christian minister to stay for the execution in the adjacent viewing room to accommodate his Christian religious views. In this scenario, would the same level of moral outrage expressed by all those doing so here?

  28. *be expressed

  29. Steve: Reframe it as “the predominantly Islamic country never informed the Christian that he wouldn’t be allowed to have a Christian minister with him until the last minute, then blamed him for his delay in requesting a Christian.” And also, the answer is yes, I would be outraged.

  30. No, JKC, you are absolutely engaged in mind reading. You are ignoring the actual arguments and pretending there is no nuance to the question. You are saying that people aren’t motivated by what they say motivates them. That is classic mind reading. To illustrate, what do you say to the people who say that Ray didn’t actually care at all about having the imam there, but that this whole thing was merely a pretense to delay execution? After all, that’s what the Court’s argument ultimately boils down to. The difference is that the doctrine the court relied on doesn’t actually depend on knowing whether it’s pretense, only that by allowing last minute appeals, the Court would open up a way to abuse the appeals process.

  31. Carolyn,

    So we’ve identified the Establishment Clause problem. I agree that if future Christian inmates are allowed to have a chaplain in the room for the execution, that would be a clear violation of the Establishment Clause. But given that Ray was not forced to have the chaplain in the room, how does staying his execution resolve the Establishment Clause issue? The remedy needs to address the problem.

    (As a side note, the same error in logic exists with the Court’s current doctrine re the Exclusionary Rule. That a police officer failed to get a warrant before discovering a cache of weapons doesn’t make the evidence less credible, so why should “the criminal … go free because the constable has blundered”? The remedy needs to address the wrong,)

  32. The 11th Circuit concluded that the delay was disputed, and it appeared Ray had brought the challenge within days of the earliest possible point it was ripe. All the Supreme Court has to do was nothing, and let the case be heard on the merits. A three week delay to address a newfound constitutional concern (after 25 years in prison) is eminently reasonable.

  33. DSC: Alabama never argued it was removing the chaplain from ALL executions — Alabama’s policy is that the Christian chaplain is REQUIRED for all executions, but after they were sued 10 days ago they offered a one-off waiver for Ray. That’s not an Establishment Clause cure.

    If Alabama permits or requires a chaplain for Christians, but denies or waives a spiritual advisor for non-Christians, that’s an Establishment Clause problem.

    And even if the policy is what you’re pretending it is — even if Alabama starting one week ago now denies access to chaplains for everyone — that’s still a RLUIPA problem.

  34. The core of the matter is that the prison only had a Christian minister on staff, with the only option being Christian or nothing. The only reason it came up “at the last minute” was that until then no one advocating for the prisoner was made aware of the fact. Accommodation was made for every point up until that last minute.

    To borrow from rather stupid alt-right ideas, it’d be like the execution being death by lethal injection which includes extract of bacon. It wasn’t something anyone thought about. Everyone figured that it’d be a treat, since everyone likes bacon. When this is discovered at the last minute, the accommodation is “we’ll just use the non-bacon formula (your loss)”.

    The guilt or innocence of the prisoner is immaterial to the case. The problem is that the Christian minister is considered “typical”. The prison had years to fix the problem (but didn’t see it as a problem); the prisoners advocate had only minutes. It’s unfortunate that it will probably take some other prisoner suing about this for the problem to be fixed, rather than prisons proactively fixing it themselves.

  35. (And Carolyn is doing an absolutely admirable job arguing)

  36. The person he raped and murdered didn’t get to have her clergy there.

    Neither was she executed by the state. One of the hallmarks of civilization is that even evildoers can count on the rule of law.

  37. Left Field says:

    I don’t think the potential of interfering with the execution is really the problem. Prisons are well-equipped to enforce behavior. That’s what prison guards are for. They can take extraordinary means to ensure that the person is unarmed. They can place him behind whatever barrier they deem necessary while still allowing him in the room. And they can show him out if he makes any move to interfere. I presume that he could be charged with a crime if he violates whatever rules they set.

  38. it's a series of tubes says:

    Carolyn, there are some other important documents that you might have linked so people can consider the issues here in more depth.

    Here are:
    1. The State’s motion and application to vacate the stay:
    https://www.supremecourt.gov/DocketPDF/18/18A815/87341/20190206194629485_Amended%20Motion.pdf

    2. Ray’s answer:
    http://www.supremecourt.gov/DocketPDF/18/18A815/87408/20190207121109444_Opposition%20to%20State%20Application%20to%20Vacate.pdf

    3. The State’s response:
    https://www.supremecourt.gov/DocketPDF/18/18A815/87436/20190207132350454_State%20Response.pdf

    These are worth reading.

  39. I’m not ignoring the arguments, Dsc, I’m calling BS on them.

  40. Like Carolyn said, “The 11th Circuit concluded that the delay was disputed, and it appeared Ray had brought the challenge within days of the earliest possible point it was ripe.” Five days. That’s what they say is untimely. I wonder how many filing deadline extensions of more than five days the justices in majority have asked for and gotten in their careers when far less was at stake. It’s particularly gross for the court to say five days is an unreasonable delay for a prisoner to start a lawsuit when it has a pretty lousy track record the last couple terms of timely ruling on cert petitions.

  41. One final point here. To the extent that all of the facts above are in dispute? Including on timing, on exactly what Alabama’s (changing) policy was, on whether Alabama had ever disclosed that policy to Ray or his lawyers, etc. etc. — resolving those disputes is PRECISELY why the execution should have been delayed. Which is what the 11th Circuit did.

  42. Carolyn, after 24 years you don’t believe the process that he would go through had long been a subject of thought? The picture you paint presumes genuine intent by the convicted rapist/murder and mal-intent by the majority of the Supreme Court justices. That doesn’t seem justified in my mind.

    Also we clearly have different concepts of what constitutes morally outrageous then. Rape and murder are morally outrageous to me. Whether someone gets to stand outside or inside a window to witness an execution does not reach that level for me. I would suggest that is actually an extremist view.

    It reminds me of when one kid gets to play with a toy, and other kids will get outraged that the kid got some perceived benefit, and would prefer that no one got to play with a toy at all. This idea of enforcing the need for perfect equity at the expense of all other reasonable factors involved quickly becomes unreasonable I’d argue. It see that idea being driven more by resentment or jealousy for those benefited rather than actually caring about merits of the individual in question.

  43. First, bad move by the Supreme Court. I am appalled. And in fact surprised, but that surprise may simply measure my ignorance and lack of attention.
    Second, when I’ve managed to come back to this thread (after turning away in shock at some of the things said) I am getting an education. So thanks, I guess.
    Third, every sentence, every thought, that goes down the path of “we shouldn’t care because he’s guilty” or “technical arguments don’t matter because he’s going to die anyway” is a resounding argument against the death penalty. _Because_ too many people think that way, we should not allow ourselves the option, no matter what you think of the morality of execution in a perfect case. (Without even reaching the “because he’s Muslim” or “because he’s black” which are also huge problems.)

  44. Alabama’s position is that their execution procedures are confidential and sealed and only revealed to Death Row inmates shortly before execution. That’s where the problem here lies — Alabama’s only argument for “well, he should have acted sooner” is “he should have heard it through the grapevine, not because we gave him a copy of the policy.”

    I’m not presuming mal-intent by SCOTUS. The Justices probably genuinely went “eh, looks like he delayed, and we’ll credit Alabama’s account over his, delays are sought all the time on Death Row and there’s no reason to make an exception here.”

    I get that impulse. It’s an impulse that even makes sense for last-ditch, last-minute, borderline-frivolous claims. This wasn’t one. And that’s what I’m furious about. Using a (weak) delay excuse to dismiss a (strong) constitutional claim on an issue (religious freedom) related to a cause (pro-life) you care about? It’s not necessarily malintent, it’s just bad judgment.

  45. Steve, you are missing the point. It’s not just about whether somebody stands inside or outside the chamber, it’s about the question of whether an inmate is allowed to have a minister of their own religion there in the chamber has a different answer depending on the inmate’s religion.

  46. FWIW, I do presume malintent on the part of the Alabama prison officials involved here. There is no good reason to have a state-endorsed Christian cleric at executions and no ability for a inmate to have a minister of his own religion there. The most likely explanation is that the prison officials simply do not respect non-Christian religions and think it’s perfectly fine for them to deprive non-Christian inmates of the opportunity they provide for Christian inmates.

    As for bad intent on behalf of the majority justices, that’s a closer call. On the one hand I’m tempted to call it nothing more than bad judgment, like Carolyn says above. But add that to the fact that this was on an abuse-of-discretion standard, and the majority made absolutely no attempt to explain how the 11th circuit abused its discretion, it’s hard to not see it as motivated by nothing more than (a) hostility to Islam, (b) hostility to death penality litigation in general, or both. Either that, or the majority justices actually don’t understand the abuse-of-discretion standard, but I doubt that’s it.

  47. JKC, as an over-arching policy, I do understand that point. ‘it’s a series of tubes’, thank you for providing those links. After reading through the arguments I am torn, I feel like arguments made from both sides had merit, I don’t think the state was totally justified in each step of the process. Not surprising to me that it was a 5-4 ruling. If it had tilted 5-4 the other way, I would be just as fine with that. Carolyn, I think it was a tough decision, I see your arguments on that side and think they do have merit.

  48. Carolyn,

    I’m not sure why you keep repeating what the 11th circuit found as though what the 11th circuit said is somehow the ultimate truth. The 11th circuit was sandwiched between two decisions that disagreed. As for the supposed three-week delay, the Supreme Court has an interest in not rewarding dilatory appeals. You may disagree that Ray could have known or should have known the circumstances of his execution before a week and a half prior to his execution, but to paint the Court’s decision as motivated by religious animus ignores the very real interests at stake here. And to paint the delay issue as a pretense invites the question as to whether Ray’s concern about the particulars of the placement of his religious advisor during the execution is actually just a pretense to delay, which brings us right back where we started.

    And you still haven’t addressed the issue of remedy. True, Alabama hasn’t taken any definitive action to cure the Establishment Clause problem in future cases. But it did cure the problem with respect to Ray. If Alabama’s partial recanting of the policy is not satisfactory, then Ray’s imam or some other interested party can sue for an injunction to make sure the policy complies with the Constitution moving forward.

    The only claim that Ray had that would have required the remedy of delaying his execution was the RLUIPA claim, but the 11th Circuit and Ray’s own petition rested that claim on discriminatory treatment[1], not that refusing to allow a prisoner’s selected religious adviser to be in the chamber during execution was per se a substantial burden on religious exercise.

    [1] “The State has placed a substantial burden on Mr. Ray’s freedom of religion by refusing to allow him to have an imam present at the time of his execution when non-Catholic Christian inmates may have the prison chaplain present.”

  49. Steve, I hear where you’re coming from. If this were a 5-4 decision after briefing and argument I might feel the same way. I don’t think it’s as close a call as you do, but maybe full development of the facts could reveal something that would change my mind. But the point is that if its a close call on an important issue of fundamental constitutional rights, you don’t disturb the court of appeals’ entry of a stay so the issues can be fully heard.

  50. DSC: The remedy is full briefing. It’s evaluation of the constitutionality of the policy. It’s an injunction against the policy. If I lose, I lose, but death by disputed procedural technicality when the merits are strong is a travesty.

  51. JKC,

    The abuse of discretion standard applies to the decision of the district court, not the appellate court. That is, the Supreme Court can review de novo whether the appellate court appropriately applied the abuse-of-discretion standard. The Supreme Court is not looking at whether the appellate court abused its discretion.

  52. Carolyn,

    “death by disputed procedural technicality when the merits are strong is a travesty.” I would agree if the thing in dispute were Ray’s guilt or culpability, and that some procedural element got in the way of Ray proving such. But that’s not the case here. A court can remedy this particular harm whether the condemned lives or dies. Ray’s imam, estate, or any number of other interested parties can stand in and allow the issue to be fully briefed, evaluated, and an injunction issued in Ray’s absence. Again, if RLUIPA required the imam to be present in the execution chamber and not in an adjoining room–regardless of what may happen to some other condemned inmate–then yes, the execution should have been stayed so that the issue could be briefed. But no one was really arguing that (and, incidentally, I don’t think it’s true).

  53. Third, every sentence, every thought, that goes down the path of “we shouldn’t care because he’s guilty” or “technical arguments don’t matter because he’s going to die anyway” is a resounding argument against the death penalty.

    Well said. I would add that examining the case assuming that Ray were innocent adds additional clarity. And given the state of our criminal justice system it’s only a matter of time until it actually happens.

  54. JKC, scratch that abuse of discretion comment. I had a separate state law issue in my head.

  55. No Dsc. The Supreme Court did not rule that the Establishment Clause issue was remedied. They just ignored the issue. (Except for the dissenters, who were very concerned about it.) You want to tell us that “in fact” Alabama remedied the problem, but that’s just you imagining a result based on disputed facts. Maybe it would have turned out that way if the courts had fully considered the arguments, but we don’t know that.

  56. Loursat,

    Please refrain from implying that I said the Supreme Court ruled on something when I said no such thing. Facts exist whether or not a court rules on them.

  57. Dsc, you are conflating facts with a legal conclusion. Even if the facts are as you claim, that does not necessarily lead to the legal conclusion that Alabama remedied the constitutional problem. We would need the courts to tell us that, and they have not. Your argument here is a lawyer’s sleight of hand.

  58. Loursat,

    Courts draw conclusions from facts. If I state that Alabama has remedied the constitutional problem (which, I have actually only said is the case with respect to the condemned in this case, not generally), I am not saying that a court has reached the same conclusion, nor am I even saying that a court will reach that conclusion. I am saying that a court should reach that conclusion based on the facts. I think on some level you understand that, or else you would have objected to Carolyn’s assertion that Alabama’s policy is unconstitutional, which no court has ruled on.

  59. Michael Austin says:

    “Also we clearly have different concepts of what constitutes morally outrageous then. Rape and murder are morally outrageous to me. Whether someone gets to stand outside or inside a window to witness an execution does not reach that level for me. I would suggest that is actually an extremist view.”

    The protection of Constitutional rights can only occur at the fringes, as that is where infringement happens. Most of the legal rights that we have, we have because a court protected that right on behalf of a genuinely unsavory, unrighteous, and undeserving person in a situation that a lot of people would consider trivial. That’s how the system works. It is the only way that the system can work. If they are rights, they apply to everybody, even really bad people. If the government can’t privilege one religion over another, then they can’t privilege (or unprivilege) any one religion anywhere. If a state government can create an established religion in a case involving a really bad person on death row, then they can do it in cases involving anyone, anywhere.

  60. Michael Austin: Thank you, thank you and thank you.

  61. Dsc, I could see where you’re coming from if it were a de novo standard. I would still disagree, vehemently, but I think it would be a closer call. The fact that they were only reviewing CA11 for abuse of discretion and found that it had abused its discretion by finding that 5 days was an unreasonable amount of time to wait, when such a substantial issue of fundamental constitutional principles is at stake seems to me to be pretty egregious.

  62. waynefrank says:

    Jared Cook is right. It says a lot about who we are.

  63. JKC,

    We’re not talking about a 5 day delay. We’re talking about two and a half months. When the issue is not one of whether the inmate is guilty or whether the method of execution is cruel or unusual, then I agree with (or at least am not offended by) the idea that to permit a stay so shortly before the execution is an abuse of discretion. I think Alabama was right that the 11th circuit improperly shifted the initial burden of the RLUIPA claim, improperly amended Ray’s complaint for him, and otherwise seemed to be looking for a reason to stay the execution. By the time the issues had been worked out, the only claim left was focused on Alabama’s policies, not anything particular to Ray’s execution, and could have continued without regard to Ray’s execution. Under those circumstances, the bar for a stay ought to be higher, and the inmate ought to have to provide better reasons for delaying the execution.

  64. I love all these conservatives in this thread saying that trampling a man’s religious observance on the occasion of death, what is in just about every religion the most or one of the most religiously significant passages that exists, is no big deal because he was going to die anyway, and “Ray’s imam, estate, or any number of other interested parties can stand in and allow the issue to be fully briefed, evaluated, and an injunction issued in Ray’s absence.”

    But should a minimum wage kitchen employee bake and frost a cake that will leave the store in the hands of the wrong kind of customer, if you know what I mean? Should a state employee have to fetch some documents from a printer and hand them over the counter at the county office to a couple who have the same gender? Should a hobby store *lack* the right to say what kind of prescription drugs their employees should be able to purchase in their own private transactions that (should) happen without the employer even knowing? Heaven forfend! Oh God and courts save us! We couldn’t possibly go on living another day with the weight on our consciences of having even once failed to fulfill each jot and tittle of these definitely totally sincere and not at all pretextual religious practice commitments!

    Jesus had a lot of things to say about people like you who are saying these hypocritical things in his name. Like-minded earthly judges may take your side now, but, seriously, good luck with that when it comes to the heavenly judge.

  65. Dahlia Lithwick had good stuff to say on this. Not anything Carolyn didn’t already say quite well, but a concurring voice worth reading.

  66. Carolyn, While you’re praying for Mr Ray maybe you could also offer a prayer for Tiffany Harville’s family. You forgot to mention Tiffany in your post. She’s the young teenager that Mr Ray brutally stabbed to death in 1995. I’m pretty sure she didn’t get to have any religious leader by her side while he was murdering her..

  67. Cynthia, are you so confident in your own moral superiority that you willing to box in commenters here to particular categories and condemn them with blanket statements?

    If you are going to make accusations of hypocrisy in the name of Jesus, something I personally find very serious, perhaps you can be specific with names and point to actual examples. I don’t see evidence of it here. Maybe you were not referring to me, I think Dsc was the only other commenter that didn’t sit left on this issue, I don’t find myself particularly conservative or liberal, depends on the issue.

    If you just want to grandstand to tout your own virtue, so be it. If you really want to call people out, I’d like to see you be more specific.

  68. it's a series of tubes says:

    Steve, one of the core purposes of BCC is for those who lean left to tout the virtue of their positions.

  69. Cynthia L

    Part of the problem is that the actual situation has been distorted beyond recognition, especially by Carolyn in the original post.

    If you want to judge me based on my position on this issue, that’s fine. But I’ll invite you to actually engage with the argument, which you may or may not understand is alluding to the legal concept of standing. Halting the execution of a rapist and murderer is neither necessary nor sufficient to remedy the Establishment Clause issue.

  70. Dsc, re the length of the delay, if you’ve read the briefs, you know that the earliest time he knew of the policy he’s challenging was 5 days before he filed. Alabama’s argument was some kind of constructive-knowledge-like argument that he should have known because maybe other prisoners knew and maybe somebody told him. But they submitted no proof to support that argument. Under those circumstances, it is outrageous to overturn the CA11’s decision, on an abuse of discretion standard, based on facts that are at the very best disputed.

  71. Dsc, I must submit that perhaps you are distorting information. I get it, you’re a smart person and you’re invested at this point (based on your comments) in being right. But perhaps you might just be missing something larger for something smaller? I mean, it’s a debate and all. I get that, but, as JKC, points out, there are considerations that you don’t seem to be acknowledging.

  72. JKC,

    Given the factors I’ve already pointed out (specifically, that the state removed the chaplain, Ray did not show that he had a right to have the imam in the chamber, and th state’s actions with respect to other prisoners ultimately does not affect Ray’s execution), I don’t think the state needs to prove that Ray actually knew, only that he had ample opportunity to find out if it was important to him. The 11th circuit improperly shifted the initial burden on the RLUIPA claim and improperly amended Ray’s complaint for him. That is more than enough to show an abuse of discretion.

    Brian,

    I could respond to your comment if you were more specific.

  73. John Mansfield says:

    It calls to mind a visit with a couple friends of my youth in the home of one of them. (They had stayed in the old neighborhood, and I had been mostly away for the previous decade.) The friend in whose home we were spoke of his desire to reach out to a couple of our friends who were in prison, one for drug distribution, and the other for murder of his infant son. The second friend felt quite bitter about our friend murdering his son, and was in no mood for visiting him or trying to help our friend improve his life as a convicted, imprisoned murderer. One element of the bitterness was seeing the murderer friend back at church for the first time in many years, apparently trying to pass as a God-fearing, church-going member of the community in the months before his sentencing, or so my bitter friend felt. The other friend felt he still wanted to do something to help the murderer.

  74. Dsc, you’re repeating yourself and kind of starting to go in circles, so I think the conversation is starting to reach an end of its productive life.

    I think you’re wrong about the burden shifting argument, but more importantly, I think you’re wrong to deny on it because that wasn’t the basis of thr majority’s decision. The fact that even the majority didn’t adopt that argument and rested entirely on the timeliness argument suggests that they didn’t think thr burden shifting argument it was a good argument either.

    And again, even assuming that your constructive knowledge argument is enough, it was at best disputed. Disputed facts normally don’t support a finding of abuse of discretion.

  75. Now I will say this: having considered it further, I don’t think majority’s decision was motivated by anti-Muslim animus; I think it was mostly just generalized hostility to death penalty litigation, combined with a commitment to religious liberty (including anti-establishment) that’s lukewarm enough to be overcome by hostility to death penalty litigation.

  76. I’m with you on JKC. They’re more committed to executions and hostile to prisoner cases than they are to picking a religion fight here. Especially when Justice Thomas doesn’t even think the Establishment Clause applies to state action.

  77. JKC, given that the majority didn’t issue a full opinion, I don’t think we can say what the majority did or didn’t find persuasive. My point is that whether a motion is timely depends on a number of equitable factors, including the effect of a motion on the ultimate outcome. Further, if a circuit court improperly sets aside the finding of fact of the district court, that is absolutely an abuse of discretion.

  78. “Also we clearly have different concepts of what constitutes morally outrageous then. Rape and murder are morally outrageous to me. Whether someone gets to stand outside or inside a window to witness an execution does not reach that level for me. I would suggest that is actually an extremist view.”

    Well, the earthly consequences for the perpetrators of each action — Ray vs the judges who have made the decision you’ve reduced to the side of a window — seems pretty well measured to your particular calibration of moral outrage. On Ray’s side we have execution after the remainder of a life being rounded off to incarceration, while the judges have to suffer… challenges and even moral criticisms of their judgment? Sounds balanced rather than extreme. And if we’re talking about Cynthia’s litigation of eternal principles, well, that’s only a problem if there’s any chance she’s right about there being any Christian teachings regarding the treatment of those guilty of crimes that one might have to account for at a judgment day.

    Of course, there is the question of society-wide consequences / legal implications of the established reasoning that goes into deciding “whether someone gets to stand outside or inside a window.”

    But maybe if we think about the foulness of the deed that Ray perpetrated enough, it means we don’t have to worry about any of the details of the system that administers justice. After all, if there’s anything we learn from the gospels, it’s that once someone else commits a sufficiently bad sin, we can stop concerning ourselves about our own conduct, especially towards them.

  79. Kevin Barney says:

    What if it were a Mormon being executed, and he couldn’t have a bishop present because Mormons aren’t Christian. Still no big deal?

  80. Thanks Kevin for bringing that up, maybe it’ll help clarify how I’m seeing it (which I think will get at W’s comment as well).

    Short answer is yes. If the person was told that their bishop as a non-employee of the prison could not enter the final chamber specifically due to safety protocols and lack of training, but instead could be and stay with the inmate up until that point to offer religious ministering/comfort/solitude etc and then could remain for the execution in the adjacent viewing room where both could see each other through the two way window separating the rooms.

    I find that very accommodating and humane. I don’t really see how having the bishop on the other side of the glass to the view the execution provides that much more benefit that couldn’t be reasonably done before entering the chamber.

    Maybe it could be considered a slight extra benefit for those inmates who are protestant Christians, to have a protestant Christian chaplain who is an employee able to enter the room. And that the prison offers this extra benefit to inmates to try and help out a majority of them the best they can is a bonus. But just because that bonus doesn’t benefit all recipients in a perfectly equal way, I don’t think the right answer is to take it away so no one can have it, nor do I think it becomes an entitlement for everyone else to have this added bonus and suddenly the prison should have to hire and train extra staff to make sure they are able to cater to every particular religious belief when it is not prudent or reasonable to do so.

    In the end I would find the type of accommodation they gave to a mormon bishop to be fair, just, and very humane. And I don’t see that as infringing on the person’s rights, or being unjust or inhumane in any way. We do what we can to be just and humane, and accommodate and offer help up to the point of reasonably being capable of doing so.

    Asking (and expecting ourselves as a society) for humane treatment I think is a good and right expectation; requiring the prison to give added benefits that are above and beyond what they can reasonably offer is to me not an entitlement or right of someone condemned to death for heinous crimes, including the rape and brutal murder of a young girl who as others have pointed out received no such accommodations.

  81. Re reasonable accommodation, what should _not_ be done is to apply Christian or Protestant Christian, or Alabama State Christian principles, to Muslim practice.

    “It is mustahabb [encouraged, not compulsory] to exhort the dying person to utter the Kalimah or word of faith so that his life will end with that and it will be the last words that he utters.” I am not aware of anything comparable in Christian practice. Roman Catholic last rites respond to the same sentiment (to my way of thinking), but have a “shortly before death” and “awaiting execution” nature, not the much stronger “last words that he utters.”

    By all appearances, Alabama imposes a Christian standard on what will be allowed. Even to the decision to not require the prison chaplain’s presence. That’s a Christian solution. Not a Muslim solution. That’s kind of the point.

  82. Nathaniel Free says:

    Tiffany Harville was left comfortless when she was raped and murdered by Dominique Rey. I imagine her last minutes on Earth were less pleasant. I wonder who she wished had been there for her in the end.

  83. Hey Nathaniel, read the comments. You’re not the first with this kind of statement. The narrow-minded nature of it has been addressed many times.

  84. To the best of my knowledge there is no circumstance in which a Mormon would be executed for the crimes of both rape and murder since the conviction for such crimes necessitates excommunication. I am unaware of a situation in which someone like Ted Bundy could repent, receive a remission of sins, be re-babtized, receiv the Holy Ghost, and be considered a member of the community in good standing at which point the hypothetical raised by Kevin might be interesting.

    Carolynn, I do not know you so I hope you can forgive me for erroneously surmising from a cursory reading judged strictly on tone that you perhaps possess a far greater ability to extend compassion, empathy, and understanding to rapists and murders than, say, past dates.

  85. I’m late to this conversation. So maybe it’s too late to make a point. Rape and murder are horrible crimes. The family(s) iof the victim will bear the burden of these brutal crimes for the rest of their lives. The way the we treat the criminal says more about us than the criminal. I have been on the other side of two horrible crimes. That is, a young man (one example) I know murdered a woman. I know his parents and I know his siblings. They live a life full of remorse and sorrow. They must and have faced the shame and sorrow of being related to the crime. Could they have prevented it? They are sorry for the victim but also they bear the loss of their son. They are part of a wider community including the ward they raised their family in. That extended community also mourns for the victim but also for the criminal’s family whose pain is almost unbearable. A tiny modicum of mercy extended to the criminal, by allowing someone to comfort him in his last moments is a blessing to those far beyond the criminal himself. If I hadn’t been close to several familys of criminals I might be less sensitive to the burdens they carry. They also are victims and need comfort. Treating the criminal with humanity and dignity, even while carrying out an extreme punishment, can be of benefit. To the criminal and to society.

  86. Anonymous for this one says:

    Ted Bundy did take the missionary lessons and was baptized. (My cousin was one of his victims). I can’t remember who told us that or if it is in any of the Bundy books. Or if it can be retrieved/rebutted by any computer wizards at North Temple. Wiki article claims he was. Who knows, my cousin’s mutilated and partly eaten body might have been in another room during the lessons. I sure hope he didn’t feed the missionaries any stews or mystery meat casserole. Bundy wasn’t much the sharing type. I feel for those missionaries.

    “What if it were a Mormon being executed, and he couldn’t have a bishop present because Mormons aren’t Christian. Still no big deal?”

    I’m confused. Are we Christians? Do we cease being Mormon after excommunication? Do our Fundy brothers and sisters have the right to claim to be Mormon, especially if the rest of society concurs? Would a mainstream Mormon bishop be sufficient for a hypothetical execution of the so-called prophet Warren Jeffs? Do we have the right to demand a chaplain of exactly the right flavor at our execution? Perhaps only a fellow BCC blogger will do for some of us.

    Put your shoulder to the wheel…. We all must work, let no one smirk….

  87. Regretfully anonymous again says:

    I am sorry for that last comment. It was over the top. My only excuse- it was darn near midnight here when I wrote it. I am surprised that the moderators let it stand. Thank you for your patience. Here is a more measured attempt to share what I was trying to say with less smirk.

    ***

    This truly is an amazing blog. People are so dexterous at the gymnastics of rhetoric. And yet so insensitive and clueless sometimes to the big picture and so dedicated to a twisted ideology.

    What is the purpose of a murder trial and the consequences that follow?

    Humans are social creatures and most of us are enmeshed in a community of family and friends. Rare is the individual who is so lonely that when they die, they are not missed and lay there to rot for several weeks unnoticed. When someone is killed, it infuriates those who care about them. Perhaps we have all suffered a loss, but to have the young life of someone you love taken way brutally and intentionally, is hard to describe unless you have experiences it.

    One of the strong instinctive responses is vengeance. I will admit that if someone killed my wife or one of my children or a sibling or one of their children and I was certain I knew who did it, and they were not arrested, I would probably not be able to restrain myself from killing them. I don’t have that many years left to serve a very long prison sentence.

    Likewise there is a natural tendency to defend you family and friends even when they do wrong. Mitigating circumstances and excuses are sought. Most of the perpetrators and victims of murder in the US are entangled in gangs in the drug trade. Another large group are domestic incidents within the family or one of its substitutes. Only a few are random brutal murders by serial killers. It is impossible for all of these people affected by a murder to see it anywhere in the same light.

    Vengeance killings tend to begat more killings. Perhaps the perpetrator did not deserve it. More excuses fueled by outrage emerge. The hatred can extend across generations. The anger of the moment justifies it.

    ***

    A murder trial is the civilized settling of a serious and legitimate conflict between the families and social networks of the victim and perpetrator. At the trial each family sits behind the attorneys representing each side. The victim does not have the right to raise the money and buy the best attorney they can afford. They are stuck with the state’s prosecutor. The perpetrator has this privilege if they can afford it or the state will appoint one for them. In large busy cities in the US, the prosecution attorneys will try as many as two or three times as many cases as the defense attorneys. Victim families are at a disadvantage in so many ways, not just this one.

    It is not a fair fight. The burden of proof rests with the prosecution. We let 10 guilty people go unpunished in order to not imprison one innocent person. It might actually be higher than that. Still the system is imperfect and several examples of innocent people being put to death or sentenced to death have been uncovered. I have interacted with the Innocence Project and understand their cause.

    The weak link in the system are the witnesses. A murder trial has been described a liars convention. The attorneys take no oath to tell the truth. The witnesses are mostly liars and criminals. Nobody trusts the police and most hired experts will say anything for the right price. It only takes one jury member to set the perpetrator free (in most states), at least until the next trial. Retrials favor the defense.

    Many murders go unsolved. Many more do not have sufficient evidence to take to trial. Many are plead out at reduced sentences unacceptable to the victim’s families. Some trials are lost by the prosecution. Less than a majority of them ever result in convictions and long prison sentences. Victim families are left with the impression that the death of their loved one didn’t matter enough.

    You have no idea what this puts the family through. You strain at the gnat that the system doesn’t work because a small portion of innocent people are wrongly convicted or treated slightly unfairly and you swallow the camel of the untold sufferings of victims’ families. It is outrageous.

    When you are sentenced to death, we as a society have agreed to eliminate torture, physical pain and suffering in the process. As much as some victim families would derive great comfort from it. We have not agreed to lessen the psychological turmoil. Small comfort is this to victim’s families. Some people may become remorseful but most are defiant to the end and never show any sincere empathy to the victim or families unless it is self-serving.

    While being executed you do not have the right to wear your lucky green socks. You do not have the right to choose the drugs to be injected. (I personally would select an IV drip of fentanyl, a powerful narcotic more potent than heroin.) You do not have the right to have your ass pointing north, south, east or west. Or your head facing to the Vatican, Jerusalem. Mecca or Salt Lake. You do not have the right to select your executioner or those assisting in the process. That would include the luxury of a chaplain, any chaplain. You have plenty of time for that in the hours and days and years before the execution. All of these are privileges and niceties granted by a benevolent state and without consent of the victim families. Why not have a chaplain representing the victim there reminding the perpetrator that he soon faces God’s swift and terrible judgment as he closes his eyes in death? Why is not that fair?

    I find it so insulting that this is even an issue, yet alone that it made it to the US Supreme Court where it was voted an arbitrary 5-4 and we still have people on the other side howling in protest. Can you not see how this trivializes the death of the victim and suffering of their family and friends? This serial killer’s luxury of a chaplain in the room versus behind a piece of glass draws more attention than his brutal actions. It makes me sick.

    ***

    At the very end of Bundy’s life, he offered to tell authorities where he left some of the still missing bodies in exchange for another week of life. Do you have any idea how insulting this was to us? That one more week of his life was worth as much as the opportunity, not to bring the girls back to life, but merely to have some scrap or bone fragment of remains to honor them? Every victim family said no thanks, let him fry. Nobody ever found any remains of my cousin. Bundy claimed he put her and several others up behind Mt Nebo somewhere and nothing was ever found after years of searching. Several miles downstream from the site, a single smallish human knee bone (patella) was found. This was before DNA and it remains anybody’s guess who it belonged to and even if it was a Bundy victim or a lost hiker. The bone was lost again somewhere in the system before DNA came along, a final insult from the system. And everyone is so concerned about which and where stands the chaplain for this brutal murderer.

    I could go into the family history of some of my other cousins, the abuse they suffered and criminal behavior they conducted. I could tell of cousins who put on short skirts and agreed to be bait for whoever this serial killer was, who was nabbing another girl every week. This while their friends and relatives covered them with illegal military weapons. I could tell of riding around on cold winter nights in trucks with relatives and loaded deer rifles looking for him. Lucky we did not shoot someone else. One relative, the ram rod of the Sundowners motorcycle gang had them looking for this elusive killer who turned out to be Bundy. I would have liked to see what they would have done to Bundy if they got him before the police. Bless his heart, he was killed in a shoot-out with the police several years later.

    I get the death penalty issue and I am a bit uncomfortable with it. I know Bundy was a serious escape risk. He was caught and convicted in Utah of kidnapping a live victim and extradited to Colorado where they thought they had a stronger case against him. He escaped twice- to kill more women in Florida. I know some criminals are able to continue to cause their gang members to kill other people. I know that the threat of execution can help prison wardens maintain control which is not that easy. Without it they may feel forced to resort to other illegal measures and try to cover it I up.

    I get the fairness issue on this case. Certainly there is one Imam in Alabam. But when you are being nice to someone it is hard to be fair because not everyone wants the same thing. To me this issue seems like quibbling between children during Sacrament meeting over who gets the red fruit loop and who gets the blue one; in relation to the big issue of the crime that was committed, the quarter of a century of legal jerking off, the lack of remorse and the suffering of the victims’ families through it all. I say to mamas in Sacrament meeting, take the fruit loops away from selfish children and to Alabama take the chaplain way, if it is this much of a distraction. And to some of you, move on to other issues where you have something valuable to say. (Including myself).

  88. John Mansfield says:

    Chaplaincy is an interesting institution. One morning in October, a week before my wife died, as I sat by her side, the chaplain entered the room, introduced herself, and asked if I would like to talk. I welcomed her, and we spoke together for several minutes. She wanted to know if my wife or I had particular religious needs that she might set to work arranging for us, but mostly I would say she was there to serve broader needs common to humanity. Before leaving us, she asked if I would like her to pray with me, and I welcomed having her do so.

    There is a young historian, Ronit Stahl, who took on chaplaincy in the military as an area of research. In answering the question “Why?” she answered, “I’ve long been interested in the relationship between religion and the state, and I wanted to examine a space of extended interaction, rather than brief flashpoints of conflict. Similarly, I’m fascinated by the intersection of pragmatism and ideology in state administration and wanted to think about politics outside of elections and legislatures. Early on, I briefly considered a comparative study of chaplains in different spaces – the military, prisons, hospitals, and universities. However, I quickly realized that the military is such a rich and complex institution to explore (complete with incredible archival records) that it was better to focus.” There is a nice half-hour interview with her at BYU Radio’s Thinking Aloud (“The Changing Role of Military Chaplains” originally aired January 10, 2018). She spoke at the end of that interview of the values of pluralism, that has chaplains serving the human, social needs (including religious needs) of all around them, and sectarianism, that seeks to accommodate particular religious needs of small groups within the military. It is the sort of mix that the Alabama execution had trouble resolving, and it might leave you asking: Is it more pluralistic or less pluralistic to hold that a prisoner was ill-served by having available a chaplain who did not share his religion?

  89. John Mansfield says:

    And here’s a little military religion story for you. A couple years ago I was a week at sea for maneuvering trials. Saturday evening I asked a senior crewman if there were any religious services planned for the next day. He showed me a locker that happened to be near us that contained religious printed material, and he showed me on a bulletin board where Sunday services were listed. Catholics would meet in the crew lounge, Protestants in the ward room, and Latter-day Saints in the crew mess. I was quite surprised that a separate meeting for the LDS was on the bulletin, and more so that it would be in the largest gathering space on the boat. The next morning I showed up at the crew mess and found a couple dozen people in the middle of an Arnold Schwarzenegger movie. This outcome was really less surprising than if there had been a bunch of elders gathering.

    So, I went over to the ward room, where a handful of enlisted were waiting outside. The captain and the executive officer were inside, and these men really didn’t want to disturb them. A chief saw the situation, said the officers have staterooms and places they can go and the ward room has been designated for these men at this time. The chief went inside, explained the situation, and the captain soon vacated the space. It felt really weird to the men to chase their captain out of the wardroom, but that’s the kind of thing that can happen accommodating religion in a confined government setting.

  90. nobody, really says:

    When I was a missionary in search of air-conditioning in August, I managed to get on the chaplain’s list at a very major US hospital. A “real” chaplain took the two of us aside, rather upset with us, and said “Do whatever you want. But know that the primary job of a chaplain is to fill out paperwork to send bodies home for burial.”

    I have to wonder if the government views the responsibilities of a chaplain as vastly, vastly different than we imagine those responsibilities to be.

  91. (Off topic with apologies to the post author.) So sorry to hear about the death of your wife, John. Although I only know you from occasional Bloggernacle interactions, after a long-ago discussion about music, Elizabeth sent me a beautifully-compiled resource for Latter-day Saint piano students. From that friendly gesture and a conversation we had at the time, I got an impression of your wife as a kind, talented, and generous woman. My sincere condolences to you and your family.

  92. I am most concerned that the opening post failed to mention the 15 year old girl and her family. These are the victims here. Not the Murderer of a 15 year old child. With that omission I was unable to charitably read the Post. There is a real tendency on the left to be pro criminal. This is simply soft headedness.

    After 24 years of litigation and back and forth over this sentence its easy to simply say enough is enough and let the warranted execution take place. This is what I think occurred here. There is lots of shenanigans that anti-death penalty groups and attorneys file in state and federal courts in efforts to delay executions. It gets tiring and obnoxious. This thug had his day in court. Plus 24 years of back and forth. The victims family has been thru enough. This was a good call by the SC.

  93. John Mansfield says:

    Amy, I remember that communication between you and Elizabeth. Thank you for sharing your memory of it.

  94. Thing is, BBell, there is no such thing as a “worthy criminal,” one who merits the following of the law because he’s a good guy. He merits the following of law, including non-discrimination, because it IS the law. What’s more, the people of Alabama, and by extension all members of the society in whose name the execution was carried out, deserve to have our laws followed. When they aren’t followed, we are shamed and the law is mocked. That’s what you’re doing here.

  95. Ardis is right. Nobody is defending his crime. It’s not mentioned in the OP because it is irrelevant to the establishment clause and religious freedom issues. There’s no sliding scale of constitutional principles depending on the seriousness of the crime. If you’re unable to charitably read the post because of that, that’s a personal problem.

  96. JKC: You have an excellent ability to make people who already agree with you try to find reasons to disagree with you. In this thread alone you’ve suggested that arguments running counter to yours are inherently “BS” and that anyone concerned with the victim has “personal problems.” Your mileage may vary, but my experience tells me that the person winning the argument rarely needs to tell everyone he’s winning the argument.

  97. Ye, jimbob, but bbell states “the left” is “pro-criminal.” As if those on “the left” want criminals. This is, of course, BS, and someone who believe such nonsense does, indeed, have a personal problem–as evidenced by the inability to move beyond that false assumption and read something charitably. Also, JKC did not say anything close to what you claim he did about “personal problems.” If you are going to attack him, at least quote him correctly and not rip stuff out of context!

  98. Brian,

    I agree that things should not be ripped out of context. It is a shame that this post started off the bat by misrepresenting the situation and failing to provide proper context.

  99. No reason to feed a fed horse, DSC. Your argument has run its course, but you can’t let it go.

  100. As a matter of constitutional law and or commitment to religious freedom, the “context” of the crime doesn’t matter. The Constitution applies equally to all detained or imprisoned individuals, regardless of their guilt or innocence, and regardless of the severity of the crime.

    And as a religious matter, if Christ can say “Father forgive them, for they know not what they do” at the moment of his death by the hands of murderers while he died for their very sin, I think we can extend a modicum of compassion to a murderer at the moment of his death.

  101. Carolyn, I’m not talking about he context of the crime. I’m talking about the context of the execution. You implied that the chaplain’s religion was a part of the policy, rather than incidental to it, and failed to note the chaplain was an employee of the prison, while the imam was not. You also failed to mention that Ray’s argument rested on the fact that the chaplain would be present, that part of his request was to remove the chaplain, which the state ultimately honored. Also not mentioned is that the imam was in fact present, but on the other side of the wall through a window.

  102. (1) Alabama chose to only hire a Protestant chaplain.

    (2) Alabama accepts and grants security clearances to a wide variety of “volunteer” ministers from a wide variety of faiths, including for years, this Imam. So “only employees possess the requisite security” argument is silly, based on how access to clergy works everywhere else in the prison system.

    (3) There was never any argument that the Imam did not or could not satisfy the same underlying concerns or serve the same underlying role as an employee.

    (4) Alabama’s “employees only” policy isn’t even a policy. It’s not written down, Alabama refused to provide a copy of it, and there was zero evidence it existed at any point prior to denying Ray access to an Imam.

    (5) The fundamental fact that Christians can have access to a chaplain [and are MANDATED to have access!] in the execution chamber while they die but Muslims can’t — regardless of the layers of supposedly “neutral” or “secular” “employee” and “security” words you put on top of it — is an Establishment Clause problem.

  103. Carolyn

    1) Irrelevant. The analysis would be no different had the prison hired a Catholic or Jewish chaplain.

    2) An execution is manifestly different from any other prison function. With only two people in the room, it would be easy for someone to interfere with the execution.

    3) The state mentioned this precise issue in its briefing.

    4) A policy need not be written. This is a fact well established in other areas of law, including employment discrimination.

    5) As I’ve said before, yes it’s a problem. But it’s a problem that is not remedied by staying Ray’s execution under these circumstances.

  104. It would have taken less time to fix the problem than it took to run it through the courts. It’s maddening that the main argument against the stay seems to be “he doesn’t deserve Constitutional protections”. Possibly worse is the shrug, saying “we’ll get it next time”, and that if accommodation were made “someone could get hurt”.

  105. This seems like it’s more for Exponents ll than BCC