Corrections_Today_November_December_2019

nEWS & vIEWS

decision, the U.S. Supreme Court stayed the execution. Chief Jus- tice Roberts and Justices Kagan, Ginsburg, Breyer, Sotomayor and Kavanaugh were in the majority. Justices Alito, Gorsuch and Thomas dissented. In his concurring opinion, Justice Kavanaugh noted that policy permitted Christian and Muslim staff chaplains to enter the execu- tion chamber but did not permit religious advisers of other faiths to enter the execution chamber. Justice Kavanaugh stated that “The Consti- tution prohibits such denominational discrimination. Allow all inmates to have a religious adviser … in the execution room; or … allow inmates to have a religious adviser, including state-employed chaplains, only in the viewing room …” 7 On April 2, 2019, the TDCJ changed its policy to ex- clude all staff chaplains and personal religious advisers from inside the execution chamber. Guidelines From these cases, it appears that the Supreme Court has established two guidelines for excluding staff chaplains and non-staff spiritual advisers from inside the execution chamber during an execution. Legal counsel should be consulted before implementing these guidelines as the law in this area continues to evolve, particularly in cases involving late- filed motions. 8 1. The state may exclude all staff chaplains and non-staff spiri- tual advisers from inside the execution chamber during an execution. 9 2. The state may not exclude some. That is, staff chaplains and/or spiritual advisers of

one faith may not be excluded from inside the execution chamber if the state allows staff chaplains and/or spiritual advisers of other faiths inside the execution chamber. 10

3 Ray v. Dunn. Case No. 2:19-CV-88-WKM[WO] (United States District Court for the Middle District of Alabama Northern Division 2019). Section 2000cc-1(a) of RLUIPA states that “No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution … unless the government demonstrates that imposition of the burden on that person … (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 4 Dunn, slip opinion, p. 1. 5 Dunn, slip opinion, p.2-3. 6 Murphy v. Collier, No 18A985, (Supreme Court 8 See Bucklew v. Precythe, No. 17-851 (Supreme Court of the United States 2019) and Dunn v. Price, No. 18A1053/18A1238 (Supreme Court of the United States 2019). 9 While this guideline addresses the issue of treating chaplains (and spiritual advisers) of different faiths equally, it may be subject to challenge under RLUIPA. For example, if an inmate sincerely requests the presence of a staff chaplain or a spiritual adviser inside the execution chamber for religious reasons, the state would then have the burden under RLUIPA of showing their absence is the least restrictive way to maintain security in the execution chamber. As the dissenting justices noted in the Dunn case above, less restrictive ways may be available. 10 Arguably, under RLUIPA chaplains and spiritual advisers of one faith could be permitted inside the execution chamber while chaplains and spiritual advisers of another faith were excluded, if the state could show (i) a compelling governmental reason for the different treatment, and (ii) the different treatment is the least restrictive way to achieve that compelling governmental reason. 11 The majority in Dunn v. Ray included Justices Roberts, Alito, Thomas, Gorsuch and Kavanaugh. The majority in Murphy v. Collier included Justices Kagan, Ginsburg, Breyer, Sotomayor, Roberts, and Kavanaugh. 12 Interview of Catholic Deacon Frank Bainbridge, retired volunteer chaplain at Riverbend Maximum Security Institution, Nashville, Tennessee, by the author on August 15, 2019. Dr. Ronald G. Turner is an attorney and the former director of Religious and Volunteer Services for the Tennessee Department of Correction. He is an adjunct instructor at Nashville State Community College. of the United States 2019). 7 Murphy, slip opinion, p. 2.

Final Note

It is interesting that Justice Kavanaugh voted with the more con- servative justices in Dunn v. Ray and a month later voted with the more lib- eral justices in Murphy v. Collier. 11 In Dunn v. Ray, he voted to lift the stay and proceed with the execution. In Murphy v. Collier, he voted to main- tain the stay and not execute Murphy unless Murphy’s personal spiritual adviser was present, or all staff chap- lains and personal spiritual advisers were banned. Whether this voting pattern indicates Justice Kavanaugh, a Catholic, is more aware of religious discrimination than some justices re- mains to be seen. Finally, banning all staff chaplains and spiritual advisers from inside the execution chamber may be a simple answer to difficult questions, but it is hard to imagine a setting more in need of a chaplain than an execution chamber being put to use. As one volunteer chaplain with 35 years’ experience said, “At the end he asked me to touch his knee and read the 23 rd Psalm. I felt positive I was where God wanted me to be, doing what God wanted me to do — helping bring peace to a very serious situation.” 12 ENDNOTES 1 Welborn, Jerry. 2019. Reflections of a prison chaplain. College Grove, Tenn.: Imaginal Publishing. 41. 2 Dunn v. Ray, No 18A815, (Supreme Court of the United States 2019).

10 — November/December 2019 Corrections Today