<< Anarchy May Be Hazardous to Your Health | Main | More Ugliness on Judicial Confirmation >>

Last Minute Filings

Holding claims until the eleventh hour before an execution has long been a favorite tactic of the capital defense bar. The tactic forces a court to choose between staying an execution beyond the scheduled date and letting it proceed despite a claim that the court cannot definitively rule out as unmeritorious in the available time.

The process of setting a date is cumbersome in many states. In some it requires the personal involvement of the governor, who may let final cases go unexecuted for years because of antipathy for the death penalty or simple inattention. Getting past a set date is a big deal, and the defense knows it.

The tactic was used in the first California execution of the modern era in 1992, that of Robert Alton Harris. The claim was a challenge to California's method of execution, which had been in use for many years. The Federal District Court in San Francisco granted a stay, and the Supreme Court vacated it because there was no reason it could not have been filed much earlier, giving ample time to consider it. Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653, 654 (1992) (per curiam).

Yesterday, as noted in today's News Scan, the Supreme Court vacated a last-minute stay issued by the Eleventh Circuit for Alabama murderer Dominique Ray, citing the Gomez decision. (Gomez was California's corrections secretary at the time. Harris was the "real party in interest" in a writ that technically names the trial court as the respondent.)

Alabama has a perfectly reasonable policy that only Corrections employees can be present in the execution chamber. A prison-employed chaplain can be one of the employees. This can present a "disparate impact" problem if an inmate of a different faith wants a spiritual advisor of his own faith present in chamber. If that problem rises to a constitutional violation (an issue not yet resolved), the obvious solution would be to remove all clergy, employees or not, to the outside of the chamber, and have only the execution team inside. I expect that is how most states do it.
The four dissenting justices (Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor), don't buy the last-minute-petition argument. They claim that Ray filed the petition in a timely manner under the circumstances. Because the majority does not answer this argument in its brief order, I will copy the District Court's ruling, as quoted in the State's petition:

Ray has been a death-row inmate at Holman Correctional Facility since 1999. Since Ray has been confined at Holman for more than nineteen years, he reasonably should have learned that the State allows only members of the execution team, which previously has included a state-employed chaplain, inside the execution chamber. Indeed, it was the state-employed chaplain who facilitated Ray's involvement with an imam for spiritual advice regarding his impending execution. Assuming that Ray "has been a committed Muslim since at least 2006" (Doc. # 10, at 1), and it being clear that Ray has had the assistance of legal counsel since at least 2003. Ray has had ample opportunity in the past twelve years to seek a religious exemption, instead of waiting until the eleventh hour to do so.

Once the denial of his federal habeas petition became final in 2017, Ray knew (or should have known) that the execution clock had started ticking. Yet there is no indication that Ray took any action for over two years to ensure that the State would honor his desire for a private spiritual advisor to be in the execution chamber with him. On November 6, 2018, the Alabama Supreme Court set his execution date for February 7, 2019. Even then, Ray sat silent, doing nothing for more than two months, waiting until ten days prior to his execution before
filing an action.

In short, Ray has been dilatory in filing this action. He has shown no just or equitable reason for his delay, which cuts against a stay of execution. His complaint came "too late to avoid the inevitable need for a stay of execution," so a stay is not granted. Williams v. Allen, 496 F.3d 1210, 1213 (11th Cir. 2007) (affirming denial of stay when inmate waited to sue until the State requested an execution date); see also, e.g., Grayson [v. Allen, 491 F.3d 1318, 1321, 1325 (11th Cir. 2007)] (affirming denial of stay when inmate sued before execution date was set); Henyard v. Secretary, 543 F.3d 644, 647-49 (11th Cir. 2008) (affirming denial of stay when inmate waited months to sue).
I am very glad to see a majority of the Supreme Court willing to stand up say "no" to needless delay in executions. Let us hope it does so more often.


Decencyevolves: Alabama had a choice here. That choice provoked a less lawyerly, more piquant and down to earth response from screenwriter David Simon: “How vicious, sneering and petulant must one be to use the machinery of the state to deny any man the means to address his higher power in his own way before you use that same machinery to kill him?”

Baloney. The imam was, in fact, present and was allowed to visit Ray beforehand. The state merely did not allow him inside the execution room. Saying that denied Ray "the means to address his higher power" is absurd.

Fair enough. But Alabama’s bias against non-Christian inmates is a matter of legitimate concern. As Justice Kagan noted: “Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion — whether Islam, Judaism, or any other — he may not die with a minister of his own faith by his side.” Alabama could have decided not to discriminate on the basis of religion, but chose not to.

You know it's funny---Kagan et al. will make a big showing of fidelity to the First Amendment when it comes to a death row inmate's bogus claims. And yes, they are bogus--Navy ships often have but one chaplain, and those sailors of faiths different from the Chaplain are out of luck. States have the power to restrict admittance to employees, and one of those employees can be a chaplain.

It is beyond awful that Kagan & crew will fetishize this guy's claim, but blow off real First Amendment claims of those who don't want to be forced to provide birth control.

I thought Kagan was smarter than this.

You left out the fact that the state did not deny Mr. Ray's request to have his Imam present until January 23 and filed in court five days later. The state did not have to take so long but that is fine. Here is a more principled conservative take: https://www.nationalreview.com/corner/the-supreme-court-upholds-a-grave-violation-of-the-first-amendment/

"More principled" defined as agreeing with you, anonymous commenter?

A blog post is not intended to be a comprehensive catalog of facts readily available elsewhere. In any event, the fact you complain I "left out" is not significant. If Ray wanted an exception to the "employees only" rule he could have started that ball rolling much, much earlier than he did.

David French, your supposedly "more principled" writer, leaves out a far more important fact. Ray did, in fact, have a contact visit with his imam immediately before the execution. A reader who did not know that vitally important fact is unlikely to pick it up from the article.

The simple answer to the problem is not to allow spiritual advisers in the execution chamber at all, whether they are state employees or not. See, e.g., Cal. Code of Regs., tit. 15 § 3349.6(g)(1)(A). Alabama got in trouble by trying to accommodate condemned inmates too much.

Of course, had he night made a request and gotten a denial he would not have exhausted his administrative remedies and would not have been able to sue per the PLRA. Also, according to his lawyer Ray last saw his spiritual counselor 3 hours before his execution.

Not sure what you are trying to say in the first sentence. In any event, there was plenty of time to exhaust administrative remedies if commenced promptly upon the completion of federal habeas corpus.

The second sentence confirms my point. Alabama did, in fact, reasonably accommodate his spiritual needs. Any time the day of the execution would do. That is what it should do for all prisoners to eliminate any disparate treatment claims.

That may be what it should do, but it is not what it does. What it does is allow Christians to have a spiritual advisor of their own faith with them to the moment of death and denies that to people of every other faith. A clearer violation of the first amendment is difficult to imagine.

Now that's just absurd hyperbole. A clearer violation of the First Amendment is quite easy to imagine. Consider this hypothetical statute.

The Episcopal Church is hereby established as the Church of the United States, and the practice of all other religions is prohibited.

That is a much more clear violation to me.

This thread has passed its point of usefulness, and I will close it now.

Monthly Archives