The lethal injection room at California's San Quentin State Prison. / California Department of Corrections via Wikimedia (CC BY 2.0)

Washington D.C., Nov 9, 2021 / 16:14 pm (CNA).

The Supreme Court heard oral arguments on Tuesday in the case of a man seeking to pray with his pastor as he is executed, and according to one legal expert the case may not be as cut and dry as it could seem. 

John Henry Ramirez, 37, was originally set to be executed Sept. 8 at the Texas State Penitentiary in Huntsville. His execution was delayed hours before it was due to occur after the Supreme Court intervened, agreeing to hear his case. 

Ramirez seeks to have Pastor Dana Moore of Second Baptist Church in Corpus Christi present with him as he receives lethal injection, and laying hands on him as he is dying. He was told that this would not be possible and that ​​personal contact by his pastor would not be permitted.

During the Nov. 9 arguments, Texas’ Solicitor General Judd Stone admitted to Justice Stephen Breyer that audible prayer and touching during executions were “commonplace,” and that there were no incidents in the nearly four decades that Texas permitted spiritual advisors to accompany condemned prisoners in the death chamber. 

Texas allowed spiritual advisors to join prisoners in the death chamber from 1982 until 2019, when a Buddhist inmate requested to be joined by a Buddhist chaplain. At the time, only employees of the Texas Department of Criminal Justice were permitted in the death chamber, and the TDCJ did not employ a Buddhist chaplain. Rather than hire one, the state banned all spiritual advisors from the execution chamber. 

“So we have experience and there’s never been a problem. All right. That’s — that’s what you think,” said Breyer. “I mean, I don’t know if you think it, but, I mean, at least that’s the best you can answer.” 

Stone told Justice Elena Kagan that he could not think of an example of a spiritual advisor interfering with an execution in another state either, but that this situation was rather unique to Texas.

“We reached out to other states, and because this is very new in the handful of jurisdictions that allow it, I’m not surprised that we have none of them,” said Stone. “This is the sort of thing we would anticipate to be a very low likelihood of occurring. It just has a catastrophic potential of potential damage if it did.”

That exchange, said Becket Vice President and Senior Counsel Eric Rassbach, should imply an easy victory for Ramirez. (Becket filed an amicus brief in support of Ramirez.)

“The facts of this case alone is that to be a nine to zero win for the prisoner,” said Rassbach in a press call following oral arguments. “These are the kinds of things that Texas has shown it can do in the past and ought to be able to do now, just like everyone else.”

However, this may not be the case, as the situation is more complicated than simply allowing a prisoner to be with his pastor during the last moments of his life. 

“The justices are concerned about the future cases that will happen,” said Rassbach. “And they’re trying to figure out how to draw lines and set standards in this area. In particular, they’re worried about either side–either the prisoner or the prison system–gaming the system in order to gain an advantage.” 

Typically, Rassbach explained, cases related to the death penalty come up on the emergency docket, not something scheduled ahead of time.

History could play a role in determining what “line” is set by the justices when it comes to this case, said Rassbach. This history, he said, would side with allowing Ramirez to have access to his clergy, as has been the practice for centuries in the United States. 

“From our point of view, if George Washington could do it, if the United States Army could do it after the Nuremberg Trials, if almost every state can do it and the federal government can do it, Texas ought to be able to do it too,” he said. 

“Frankly, Texas itself used to do it until 2019.”