Gutierrez v Saenz

In Texas, the issue of whether death row inmates may have a spiritual adviser at the time of execution is quite controversial. Previously, only Christian or Muslim leaders were allowed in the execution chamber, until the important case in 2019, Murphy v Collier. Patrick Murphy asked for a Buddhist spiritual adviser to accompany him to the execution chamber, and the Supreme Court ruled that it was not neutral to “allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room” (Justice Kavanaugh). So, Texas changed the policy to exclude all spiritual advisers from the execution chamber, regardless of religion. Now, Ruben Gutierrez, a Catholic who has spent more than 20 years on death row for murdering an 85-year-old woman during a robbery, is suing, citing that the policy violates his Free Exercise as well as the Religious Land Use and Institutionalized Persons Act (RLUIPA). A federal district court sided with Gutierrez and stayed his execution, but this was lifted by the 5th Circuit. Recently, in June 2020, a day before Gutierrez’s scheduled execution, the U.S. Supreme Court granted a stay of execution, instructing the district court to decide “whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.” In November, more evidence was collected, and now, on January 25th, 2021, the U.S. Supreme Court has granted certiorari, after rescheduling the case nine times. 

    The central question at hand is: does the state of Texas have the right to prohibit all spiritual advisers in the execution chambers, or is such a restriction a violation of Free Exercise and the Religious Land Use and Institutionalized Persons Act?

In this case, as with most cases of prisoner’s rights, the central point of argument is that of security and order. Previously, Justice Brett Kavanaugh has contended that states may have “a strong interest in tightly controlling access to an execution room in order to ensure that the execution occurs without any complications, distractions, or disruptions.” The problem is, of course, that Texas previously allowed some spiritual advisers at the time of execution. However, after Murphy v Collier, the courts ruled that they can not treat different religions differently, thus Texas’s solution was total prohibition on spiritual advisers in the execution chambers. So clearly, if Texas previously allowed certain spiritual advisers in the execution chambers, then spiritual advisers did not prove to substantially complicate or disrupt the execution chambers. The timing of this new law in Texas is certainly interesting, as now their main claim of security and order does not hold as much value: as they previously did not see it having substantial burdens when they only allowed Christian and Muslim advisers. 

    Furthermore, in a brief filed on behalf of Gutierrez, the added evidence from November’s investigation found that “the amount of risk involved in allowing non-prison officials into the execution chamber is not so great that prison administration can summarily dismiss that alternative,” and that “adequate processes and security can control the risk.” Thus, I would argue that the state does not have a compelling interest in barring all spiritual advisers in the execution chambers. 

Personally, I believe that Texas has violated Gutierrez’s Free Exercise in this case, given that substantial burdens on religious exercises are only allowed if there is a compelling governmental interest, and is the least restrictive means of furthering that interest. I think that Texas has proved it does not have a substantial compelling interest, given the history of this case, and the only difference between previously allowing religious advisers and now is that the inmate is allowed to choose their religious adviser (ie. all religions are included). This shows Texas’s preference towards certain religions, and is a clear violation of Free Exercise. 

In a very similar case, Dunn v Smith, the U.S. Supreme Court ruled that Alabama must allow the inmate Smith to be accompanied by his pastor in the execution chamber, following a new law put in place to exclude all religious advisers. Justice Kagan wrote that “..past practice, in Alabama and elsewhere, shows a prison may ensure security without barring all clergy members from the execution chamber.” She is essentially saying that the security risks have proved to not be substantial enough for a reasonable explanation of violating one’s Free Exercise rights. I believe the courts should follow this relatively new precedent set. 

Another case on prisoner’s right was O’Lone v Estate of Shabazz, where the courts ruled that the security restrictions for not allowing two Muslim inmates to attend the Friday Juamu’ah service were valid in light of the setting. Essentially, the court agreed that being incarcerated does place certain limitations on your rights, and the prison administration should evaluate the security risks, not the courts. In this case, if Texas prison administrations were to refer to their own previous evaluation of the security risks, the state would allow (as it did previously) religious advisers in the execution chamber. Further, this case exhibits starkly different characteristics than Gutierrez v Saenz here, in that it was referring to a typical workday and schedule of inmates (including the corresponding security). Now, Gutierrez v Saenz, looks at the time of execution, in which the security risks and order are different than everyday schedules of inmates. One could also argue that here the prison administration needs to accommodate this only once in an inmate's life - not every Friday as in O’Lone (so there is less of a burden on the prison).

Overall, I believe Texas did violate Gutierrez’s Free Exercise and RLUIPA rights, and the state should allow any and all spiritual advisers in the execution chambers.