State-Sanctioned Sadism


You’ve probably never heard of Dominique Hakim Marcelle Ray, at least not until a few weeks ago when his name broke into the national news. Ray was incarcerated on death row at Alabama’s Holman Correctional Facility for the 1995 rape, robbery, and murder of fifteen-year-old Tiffany Harville. On November 6, 2018, all appeals having been exhausted, the State of Alabama set the date of Ray’s execution for February 7, 2019. That day came, and Ray was executed by lethal injection.
There are two things about Ray’s story that deeply disturb me.
First, I am unable to comprehend how the activity in the Holman execution chamber after Ray was ushered in, including the final moments following the release of the lethal cocktail of drugs into his body, was not an ultimate abridgement of his religious freedom.
It turns out that there is a staff Christian chaplain on the payroll at the prison, and this member of the clergy is a “member of the execution team.” The prison’s policy is to have the chaplain in the execution chamber to provide “pastoral care” to the prisoner, including the provision of prayer on bended knee should the prisoner desire that care. If that should not be the case, the chaplain stands unobtrusively in the chamber, back against the wall, out of the prisoner’s sight.
There have been fifty-one executions at Holman Correctional Facility since 1997, the year the current chaplain came on the prison’s staff. He has been present at every one of those executions except one, so presumably he has become inured to the experience of watching the profane and unceremonious execution of a human being. I don’t know whether any of those condemned prisoners availed themselves of the chaplain’s services on the day of their execution, nor do I know whether any of them were devout adherents of a religious tradition other than Christian. But we do know that Ray was.
Ray converted to Islam following his incarceration and was known to be an observant Muslim since 2006. He also met regularly with the Imam who provided religious counsel and care to the Muslim prisoners at Holman.
On Wednesday, January 23, 2018, two weeks before the date of his execution, Ray met with the prison warden to receive a full briefing on the policies and procedures followed by the State in administering an execution. It was only at that time that Ray learned about the presence and role of the prison chaplain in the execution chamber, and upon learning this, he sought an accommodation to his religious beliefs by making three requests: He asked that his Imam be present with him in the execution chamber to provide spiritual care and counsel up to the time of his death, that the staff Christian chaplain be absent from the chamber during the execution, and that, because it conflicted with his religious beliefs, an autopsy not be performed following his death. The warden summarily denied the first two requests and stated that it was not within her purview to grant the third.
Over the next several days, Ray sought relief from this burden on his religious freedom, his freedom of conscience (his soul liberty, as Baptists call it). He first appealed to the Alabama Department of Corrections who denied his request, even though the Alabama statute governing executions specifically states that “the spiritual advisor of the condemned” may be permitted to be “present at an execution.”
On Monday, January 28, five days after Ray’s meeting with the warden, his attorneys filed suit in U.S. District Court for the Middle District of Alabama on the grounds that, under both the federal Religious Land Use and Institutionalized Persons Act of 2000 (42 U.S.C. § 2000cc et seq.) (RLUIPA) and the Establishment Clause of the First Amendment, his religious rights were being abridged. Simultaneously he sued for a stay of execution to allow time for the court to thoroughly review and adjudicate the matter.
In the decision handed down by the District Court on February 1, his request for the presence of his Imam was denied, though permission was given to the State to exclude the Christian chaplain from the chamber. The logic for dismissing Ray’s claim was that (1) he should have known that a Christian chaplain would be in attendance in the chamber—Ray “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,” and (2) his request for relief came too late, too close to his scheduled execution date—he “has had ample opportunity in the past twelve years to seek a religious exemption, instead of waiting until the eleventh hour to do so”; thus “the inmate has delayed unnecessarily in bringing the claim,” warranting a “presumption” by the court “against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.” Ignorance is no excuse; too little too late.
Ray appealed this decision to the U.S. Court of Appeals for the Eleventh Circuit, and on Wednesday, February 6, the court handed down its ruling, concluding that “Ray is substantially likely to succeed on the merits of his claims.” Moreover, the court noted the fact that just because “the claim was brought at the last minute does not necessarily establish that it was brought in a dilatory manner.” Indeed, the court declared that “the state has not provided us with any evidence that Ray knew or should have known that his religious beliefs would not be accommodated prior to January 23, or that he had any opportunity to request an accommodation prior to that date.” To the contrary, in the court’s view, “Ray has provided an altogether plausible explanation for why the claims were not filed in district court sooner and the state has neither argued nor produced any evidence that the petitioner was aware that the claims were available at an earlier date.” Thus, the Court of Appeals granted Ray’s petition for an emergency stay of execution so it could have adequate time to review the matter unhindered by the press of the execution date, set for the following day.
On Thursday, February 7, the day of Ray’s scheduled execution, the State of Alabama appealed this ruling to the U.S. Supreme Court with an emergency motion and application to vacate the stay of execution. In a rather perfunctory manner, the Supreme Court simply issued an order—a “Miscellaneous Order”—denying both the stay of execution and the review of the decision of the Court of Appeals.
However, Justice Elena Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, issued a strongly worded dissent decrying the majority’s decision to deny. Noting the conclusion by the Eleventh Circuit that there was “a substantial likelihood that the prison’s policy violates the First Amendment’s Establishment Clause,” Justice Kagan quoted the Court’s own 1982 ruling in Larson v. Valente (456 U.S. 228, 244) and opined:
“The clearest command of the Establishment Clause,” this Court has held, “is that one religious denomination cannot be officially preferred over another.” But the State’s policy does just that. Under that policy, a 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. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.
Addressing the U.S. District Court’s belief that Ray’s ignorance of the chaplain policy was not a credible claim, Justice Kagen, concurring with the sentiments articulated in the Eleventh Circuit’s decision, declared that “there is no reason Ray should have known, prior to January 23, that his imam would be granted less access than the Christian chaplain to the execution chamber.”
In her dissent, Justice Kagan noted that the Supreme Court does not usually override the decision by an Appellate Court to issue a stay of execution. But in Ray’s case, the minority believed the majority’s decision to deny was erroneous and indefensible. Justice Kagan asserted:
Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death. The Eleventh Circuit wanted to hear that claim in full. Instead, this Court short-circuits that ordinary process—and itself rejects the claim with little briefing and no argument—just so the State can meet its preferred execution date.
In any circumstance, it is both excruciating and bewildering to witness judicial actors truncate and malign the procedures intended to secure and establish justice. Moreover, it is most unsettling to observe the unexpected and inexplicable indifference to an individual’s constitutionally guaranteed freedom in a situation where the power to end a human life is held and administered by the same government that is chartered by the Constitution to protect and preserve that freedom.
Why was a state-paid Christian chaplain required to be present in the chamber at the time of a prisoner’s execution? The answer is: to attend to the spiritual and end-of-life needs of the prisoner. Suppose the prisoner does not desire such attention. What then? The answer: the chaplain will remain in the chamber, out of sight. Can a representative of another religious tradition attend to the needs of the prisoner? The answer: No.
Regardless of any reasons that may be given by the Department of Corrections or the State to defend the policy to exclude the representative of any but the Christian religion, how can this policy not be anything but the state establishment of a religion, the preference of one religious tradition over against others, the privileging of one religion over another, the unequivocal abandonment of state neutrality in those matters of religion where individual lives and the interests of the state intersect? The answer: It can’t. It is an establishment; it is all of these things, and tragically, the judicial process set in place to protect the religious liberty and freedom of conscience of the individual, in this case, came to its end—its denouement—as an injudicious and fallacious rush to judgment.
In the case of Domineque Ray, my criticism of that legal process and its outcome is focused on the infringement of religious liberty. It pains me to think of anyone coming to their death—whether it is natural, accidental, or self-inflicted—having been denied the attendance of one who embodies the same set of religious convictions and commitments, the same spirituality and sense of relatedness to the ultimate, however this ultimate may be discerned and named. How agonizing it must be to be alone at death’s door, tormented in word and deed by agents whose authority and power over you are so absolute that it practically rivals the supreme authority and power of that Ultimate Reality, however named, into whose company you hope and believe yourself to be entering.
It distresses me to think that our government—from Holman Prison, the Alabama Department of Corrections, the U.S. District Court, and finally the U.S. Supreme Court—would so callously and garishly impugn Ray’s religious rights embedded in the First Amendment and codified in RLUIPA, especially in the context of exercising its power to take his life from him. At what point did Ray formally relinquish his freedom of conscience and religious liberty? Answer: At no point. There is no evidence or vague indication that Ray ever surrendered this freedom. Well then, at what point was he stripped of this freedom, having his constitutionally-guaranteed freedom of conscience and religious liberty forcibly, unlawfully, and immorally taken from him? Answer: At the point where his request for accommodation was summarily refused by the warden at Holman Prison, all the way through to the point where the Supreme Court abruptly and expeditiously denied relief from the burden placed on his soul liberty. The action of the State to inflict suffering and humiliation on Ray throughout his ordeal in contending for his freedom of conscience can be construed as state-sanctioned sadism!
This country has a long history of acknowledging and securing freedom of religion, but it is a checkered history in which establishment and disestablishment, persecution and tolerance, uniformity and diversity, practice and prohibition, “church and state” have battled for supremacy, even in the run-up to and the unfolding from the adoption of the First Amendment. The enshrinement of this “first freedom” in the U.S. Constitution may be considered as the apotheosis of this struggle, which nevertheless obviously continues in some forms.
You may be familiar with the writings of those towering seventeenth- and eighteenth-century figures like Voltaire and John Locke, Roger Williams and Isaac Backus, Thomas Jefferson and James Madison, who advocated for religious liberty and contested the presumption of government to establish or regulate any religion in any form for any purpose. But one writer you probably have not read or heard of is Elisha Williams, born in 1694 who was a Congregational minister, rector at Yale University, Connecticut legislator, Speaker of the House, and Superior Court judge. In 1744, while serving as a legislator and judge, he wrote a brief book with the lengthy title The Essential Rights and Liberties of Protestants: A Seasonable Plea for the Liberty of Conscience and the Right of Private Judgment in Matters of Religion without any Controul [sic] from Human Authority. On the question of surrendering one’s freedom of conscience, he wrote:
No action is a religious action without understanding and choice in the agent. Whence it follows, the rights of conscience are sacred and equal in all, and strictly speaking unalienable. This right of judging every one for himself in matters of religion results from the nature of man, and is so inseperably [sic] connected therewith, that a man can no more part with it than he can with his power of thinking: and it is equally reasonable for him to attempt to strip himself of the power of reasoning, as to attempt the vesting of another with this right. And whoever invades this right of another, be he pope or Cæsar, may with equal reason assume the other’s power of thinking, and so level him with the brutal creation. A man may alienate some branches of his property and give up his right in them to others; but he cannot transfer the rights of conscience, unless he could destroy his rational and moral powers, or substitute some other to be judged for him at the tribunal of God.
Thus, one can argue, as Williams and others have, that the freedom of conscience is unalienable, and that the freedom of religion is inseparably connected to it. And I would be one so to argue, on the same grounds as did the seventeenth- and eighteenth-century advocates: subjection and persecution of conscience by civil authority is unabridged tyranny, against which civil authority, at least in a democratic system, is established and empowered to protect. The fact that our own judicial system failed so contemptuously to preserve and protect Ray’s religious liberty precisely up to and at the moment where his life was taken from him is something about Ray’s story that deeply disturbs me.
But it is only the first thing. The second thing is the very fact that the State condemned him to death and succeeded in taking his life.
That will be the subject of the next post…

Comments

Bob Thompson said…
Thank you Douglas for this powerful and important post. We need your voice!

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