Amicus Curiae Brief — John H. Ramirez, Petitioner v. Bryan Collier, Executive Director, Texas Department of Criminal Justice, et al.

No. 21-5592

In the Supreme Court of the United States

JOHN H. RAMIREZ, PETITIONER

v.

BRYAN COLLIER, EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE ET AL., RESPONDENTS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF SPIRITUAL ADVISORS AND FORMER

CORRECTIONS OFFICIALS AS AMICI CURIAE

SUPPORTING PETITIONER

DAVID D. COLE

DANIEL MACH

DAVID C. FATHI

HEATHER L. WEAVER

JENNIFER A. WEDEKIND

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, N.W.

Washington, DC 20005

LISA S. BLATT

Counsel of Record

CHARLES L. MCCLOUD

AYLA S. SYED

BRYAN A. CZAKO

WILLIAMS & CONNOLLY LLP

725 Twelfth Street, N.W.

Washington, DC 20005

(202) 434-5000

lblatt@wc.com

(Additional counsel on inside cover)

2

CASSANDRA STUBBS

BRIAN STULL

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

201 W. Main St., Suite 402

Durham, NC 27701

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .................................... 1

SUMMARY OF ARGUMENT .......................................... 3

ARGUMENT ....................................................................... 5

THE STATE’S REFUSAL TO ALLOW MR.

RAMIREZ’S PASTOR TO AUDIBLY PRAY AND

LAY HANDS ON HIM VIOLATES RLUIPA. .............. 5

A. The State’s Policy Imposes a Substantial Burden

on Mr. Ramirez’s Religious Exercise. ................... 5

B. The State’s Justifications for Denying Mr.

Ramirez’s Requests Do Not Withstand Strict

Scrutiny. .................................................................... 9

1. Spiritual Advisors Have Long Played a Role

in Executions. .................................................. 11

2. The Presence of Spiritual Advisors Does Not

Pose a Security Risk. ...................................... 19

3. The State’s Complete Ban on Audible Prayer

and “Laying of Hands” Is Not the Least

Restrictive Alternative. .................................. 25

CONCLUSION .................................................................. 27

(I)

II

TABLE OF AUTHORITIES

Page(s)

Cases:

Adkins v. Kaspar, 393 F.3d 559 (5th Cir. 2004) ........... 8

Couch v. Jabe, 679 F.3d 197 (4th Cir. 2012) ................ 10

Dunn v. Smith, 141 S. Ct. 725 (2021) .......... 8, 10, 19, 26

Gonzales v. O Centro Espirita Beneficiente

Uniao Do Vegetal, 546 U.S. 418 (2006) ................... 11

Greene v. Solano Cnty. Jail,

513 F.3d 982 (9th Cir. 2008) ....................................... 9

Gutierrez v. Collier,

No. 1:21-CV-00129 (S.D. Tex.) ................................. 24

Gutierrez v. Saenz, 141 S. Ct. 127 (2020) .............. 22, 23

Gutierrez v. Saenz,

No. 1:19-CV-00185 (S.D. Tex.) ........................... 23, 24

Holt v. Hobbs, 574 U.S. 352 (2015) ....................... passim

Murphy v. Collier, 139 S. Ct. 1475 (2019) ..................... 8

Murphy v. Collier,

No. 4:19-cv-01106 (S.D. Tex.) ................................... 13

New Doe Child #1 v. Cong. of U.S., 891 F.3d

578 (6th Cir. 2018) ....................................................... 8

Spratt v. R.I. Dep’t of Corr.,

482 F.3d 33 (1st Cir. 2007) ........................................ 10

Warsoldier v. Woodford,

418 F.3d 989 (9th Cir. 2005) ..................................... 10

Yellowbear v. Lampert,

741 F.3d 48 (10th Cir. 2014) ....................................... 9

Statutes:

Religious Land Use and Institutionalized

Persons Act, 42 U.S.C. § 2000cc et seq. .......... passim

Miscellaneous:

146 Cong. Rec. 16,698 (2000) ........................................ 11

Acts 8:14 .......................................................................... 18

III

All Things Considered: Witness to an

Execution, NPR (Oct. 12, 2000) .............................. 13

“Historical Federal Executions,” United States

Marshals Service, available at

https://www.usmarshals.gov/history/executio

ns.htm (last checked September 27, 2021) ............. 12

INTO THE ABYSS (IFC Films 2011) ....................... 13

Louis P. Masur, Rites of Execution: Capital

Punishment and the Transformation of

American Culture 1776-1865 (1989) ....................... 11

Mark 10:13-16 ................................................................ 18

Pamela Colloff, The Witness, Tex. Monthly

(Sept. 2014) ................................................................ 13

Ralph Houlbrooke, Death, Religion, and the

Family in England, 1480-1750 (1998) ...................... 6

Randall McGowen, The Body and Punishment

in Eighteenth-Century England ............................. 11

Robert Arnold, Here Are the Rules Spiritual

Advisors Must Follow To Be Present Inside

Texas Execution Chamber, KPRC Hou.

(April 24, 2021),

https://www.click2houston.com/news/investi

gates/2021/04/24/here-are-the-rulesspiritual-advisors-must-follow-to-be-presentinside-texas-execution-chamber/ ............................. 25

Salatheia Bryant, Chaplains Offer Faith to

Those on Death Row, Hou. Chron. (July 30,

2007) ............................................................................ 13

The Execution of Edward F. Douglass and

Thomas Benson for the Murder of Ava A.

Havens, Bos. Herald, Jul. 28, 1851 .......................... 12

Walter C. Long, The Constitutionality and

Ethics of Execution-Day Prison Chaplaincy,

21 Tex. J. on C.L. & C.R. 1 (2015) .......................... 14

INTEREST OF AMICI CURIAE *

Amici curiae are a group of spiritual advisors who

have been present in the death chamber during executions and a group of corrections experts who have more

than 150 years of experience in prison administration, collectively, and have witnessed or overseen more than 50

executions. Although amici come from different backgrounds, follow different faiths, and hold different views

on the death penalty, they share a commitment to ensuring that individuals facing death via execution are not denied the opportunity to observe their faith as fully as possible in their final moments. Amici believe that allowing

the support of a spiritual advisor in the execution chamber

during the execution process is critical to respecting the

dignity and religious-freedom rights of the prisoner. And

amici’s experiences show that prohibiting spiritual advisors from praying aloud and “laying of hands” on a prisoner during an execution is not necessary from a security

standpoint and thus not the least restrictive means of advancing the State’s interests, as required by the Religious

Land Use and Institutionalized Persons Act.

Clergy and Spiritual Advisors

Father Mark O’Keefe is a Roman Catholic priest and

a member of the Order of St. Benedict (Ordo Sancti Benedicti). He was present in the death chamber as a spiritual

advisor when the federal government executed Dustin

Honken in July 2020. While in the death chamber, before

*

Pursuant to Rule 37.6, amici affirm that no counsel for a party authored this brief in whole or in part and that no person other than

amici or their counsel have made any monetary contributions intended to fund the preparation or submission of this brief. Pursuant

to Rule 37.3, amici affirm that all parties have filed blanket letters of

consent to the filing of amicus briefs with the Clerk’s Office.

(1)

2

the administration of lethal drugs, Father O’Keefe was

permitted to perform last rites for Mr. Honken, which included giving communion, praying aloud, and touching

and anointing him with holy oils.

Sister Barbara Battista is a Roman Catholic Sister

and a member of the Sisters of Providence of Saint Maryof-the-Woods, Indiana. She served as the spiritual advisor for Keith Dwayne Nelson in August of 2020 and William Emmett LeCroy in September of 2020 when they

were executed by the federal government. While in the

execution chamber, she was allowed to speak with both

men and pray audibly with Mr. LeCroy throughout the

duration of the execution.

Dr. Yusuf Nur is an Associate Professor at Indiana

University at Kokomo and a local Muslim leader. He

served as the spiritual advisor for two recent federal executions: the execution of Orlando Hall in November 2020

and the execution of Dustin Higgs in January 2021. Both

times, he was present in the execution chamber and permitted to pray audibly.

Rev. Dale Hartkemeyer (aka Seigen) is a Buddhist

priest and served as the longtime spiritual advisor for

Wesley Purkey, who was executed by the federal government in July 2020. During the execution, Rev. Hartkemeyer stood in the chamber and was permitted to audibly chant a sutra until Mr. Purkey died.

Rev. Bill Breeden is a Unitarian Universalist minister. He witnessed a federal execution in January 2021 as

the designated Minister of Record for Corey Johnson. He

was present in the death chamber and delivered audible

prayers.

Sister Helen Prejean is a Catholic nun who has

served as a spiritual advisor for six executions in different

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states. At the 1997 execution of Joseph O’Dell in Virginia,

she was permitted to visit with Mr. O’Dell in the death

chamber, stand near his head with her hand on his shoulder, and pray out loud.

Corrections Officials

Justin Jones spent 36 years with the Oklahoma Department of Corrections, where he served as Director

from 2005 through 2013. He has also served as the Chair

of the Commission on Accreditation for the American

Correctional Association. He has witnessed or overseen

28 executions.

Dan Pacholke is the former Secretary of the Washington State Department of Corrections, the top position

within the Department. He served in the Department for

33 years. He is a co-author of Keeping Prisons Safe:

Transforming the Corrections Workspace (2014). He has

witnessed three executions and overseen one execution.

Emmitt Sparkman is the former Deputy Commissioner of Institutions for the Mississippi Department of

Corrections. His career in adult and juvenile corrections

spans over 46 years. He has held line and management

positions in Texas, Kentucky, and Mississippi. He has

witnessed or overseen 17 executions.

Eldon Vail is the former Secretary of the Washington

State Department of Corrections. He has more than 40

years of experience in the field of corrections and has

served as an expert witness in numerous prison-related

cases across the country. He has witnessed or overseen

three executions.

SUMMARY OF ARGUMENT

John Henry Ramirez is to be executed. In his final

moments, he wishes to have Dana Moore, his pastor of five

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years, pray aloud and lay hands on him. But the State has

denied that right to Mr. Ramirez. The State will allow

Pastor Moore to stand in the execution chamber and nothing else. Pastor Moore cannot speak, pray out loud, or

lay hands upon Mr. Ramirez as he confronts his imminent

death and takes his last breaths.

The State’s complete ban on audible prayer and the

“laying of hands” on Mr. Ramirez violates the Religious

Land Use and Institutionalized Persons Act (RLUIPA),

42 U.S.C. § 2000cc et seq., which was enacted “to provide

very broad protection for religious liberty” by subjecting

the State to strict scrutiny whenever it substantially burdens a prisoner’s religious exercise. Holt v. Hobbs, 574

U.S. 352, 356-57 (2015) (quoting Burwell v. Hobby Lobby

Stores, Inc., 573 U.S. 682, 693 (2014)).

Barring spiritual advisors from praying audibly and

physically touching prisoners during an execution denies

those about to die their right to faith-based solace and religious practice when it matters most, and it unquestionably constitutes a substantial burden on religious exercise.

As the spiritual-advisor amici can affirm, their role in the

execution chamber is not simply to stand by mutely, but

to minister to the prisoner as he meets death, providing

spiritual comfort and a final opportunity for the individual

to engage with his faith at the most critical time.

The State’s complete ban on audible prayer and physical touch is also not the least restrictive means of furthering the government’s security interests. Under RLUIPA,

“[w]hile not necessarily controlling, the policies followed

at other well-run institutions would be relevant to a determination of the need for a particular type of restriction.”

Holt, 574 U.S. at 368 (quoting Procunier v. Martinez, 416

U.S. 396, 414, n.14 (1974), overruled by Thornburgh v. Abbot, 490 U.S. 401 (1989)). The historical practice of prison

5

chaplains in and outside of Texas, as well as amici’s experiences with numerous executions in other jurisdictions,

demonstrate that the religious practices Mr. Ramirez has

requested can be and have been implemented without

jeopardizing the integrity of the execution. The contrary

judgment of the Fifth Circuit should be reversed.

ARGUMENT

THE STATE’S REFUSAL TO ALLOW MR. RAMIREZ’S

PASTOR TO AUDIBLY PRAY AND LAY HANDS ON HIM

VIOLATES RLUIPA.

RLUIPA provides that “[n]o government shall impose

a substantial burden on the religious exercise” of a prisoner unless the State “demonstrates that [the] 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.” 42 U.S.C. § 2000cc-1(a). Once an individual

shows that the State’s action imposes a substantial burden

on his religious exercise, the burden shifts to the State to

show its policy is the least restrictive means of furthering

a compelling government interest. See Holt v. Hobbs, 574

U.S. 352, 362–63 (2015).

In this case, the State has substantially burdened Mr.

Ramirez’s religious exercise by denying his final religious

requests and is unable to demonstrate why doing so is the

least restrictive means of achieving a compelling governmental interest.

A. The State’s Policy Imposes a Substantial Burden

on Mr. Ramirez’s Religious Exercise.

RLUIPA defines “religious exercise” broadly to include “any exercise of religion, whether or not compelled

by, or central to, a system of religious belief.” 42 U.S.C. §

6

2000cc-5(7)(A). Of course, “a prisoner’s request for an accommodation must be sincerely based on a religious belief.” Holt, 574 U.S. at 360-61.

Mr. Ramirez believes that his pastor’s “laying of

hands” on him as he dies, while vocalizing prayers and

scripture, will guide him to the afterlife. Compl. in 4:21cv-02609, Doc. 12, Ex. 2 (S.D. Tex.) (Aff. of Pastor Moore).

This belief is consistent with the Christian tradition,

which has long held as a central tenet that a person’s dying moments are critical to salvation and that, just as Jesus Christ ministered to the men being crucified alongside

him, see Luke 23:42-43, clergy must help the condemned

to seek salvation. “The last moments of life were believed

to be crucially important during the later Middle Ages. . . .

[A]t this critical juncture, the Church offered help generally regarded as indispensable in making a safe departure

from the world . . . ” Ralph Houlbrooke, Death, Religion,

and the Family in England, 1480-1750 147–49 (1998).

The sincerity of Mr. Ramirez’s belief likewise is not in

doubt. Yet Respondents maintain that denying his last

religious requests is not a substantial burden on Mr.

Ramirez’s religious practice. They offer two arguments,

both of which are erroneous.

1. Respondents argue that they have done enough to

satisfy Mr. Ramirez’s religious requests. Br. in Opp. at

19-20, Ramirez v. Collier, No. 21-5592 (Sept. 8, 2021). Respondents note that, under current Texas Department of

Criminal Justice (TDCJ) protocol, Mr. Ramirez can meet

with his pastor before the execution. Id. But “RLUIPA’s

‘substantial burden’ inquiry asks whether the government

has substantially burdened religious exercise . . . not

whether the RLUIPA claimant is able to engage in other

forms of religious exercise.” Holt, 574 U.S. at 361-62. Any

accommodations the State may make before the execution

7

do not reduce the burden on Mr. Ramirez’s fundamental

religious need to have his pastor guide him to the afterlife

while he is being put to death. Thus, under RLUIPA, the

fact that Mr. Ramirez may have other ways to exercise his

faith is irrelevant. What matters is whether this particular religious belief is sincere, and whether he is prevented

from exercising it at this spiritually critical moment. Both

of those requirements are undoubtedly met.

2. Respondents further argue that RLUIPA only

proscribes states from imposing policies that coerce a person to do what his religious tenets forbid. Br. in Opp. at

18, Ramirez v. Collier, No. 21-5592 (Sept. 8, 2021). In Respondents’ view, because the State does not force Mr.

Ramirez to violate his religious beliefs, the State has not

run afoul of RLUIPA. That is not the law.

The text of RLUIPA is not so narrow as to limit its

application to coercion. It broadly prohibits states from

imposing “a substantial burden” on “religious exercise,”

42 U.S.C. § 2000cc-1(a), and defines religious exercise as

“any exercise of religion.” 42 U.S.C. § 2000cc5(7)(A) (emphasis added). RLUIPA is to “be construed in favor of a

broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” 42 U.S.C. § 2000cc-3(g). And, Congress enacted RLUIPA—and its sister, RFRA—specifically in response to this Court’s holding that “neutral” and “generally applicable laws that incidentally burden the exercise

of religion” do not run afoul of the Free Exercise Clause.

Holt, 574 U.S. at 356-57. The State’s proposal is at odds

with the plain language of RLUIPA and the very purpose

of the statute.

Moreover, if RLUIPA only proscribed coercing prisoners to disobey their religion, it would not protect any

8

religious requests at the time of death. A policy forbidding pastors even from being in the building during an execution would survive challenge. But this Court already

rejected that erroneous reasoning in Dunn v. Smith. 141

S. Ct. 725 (2021) (mem.). There, Alabama argued that it

could bar all clergy members from the execution chamber

in the name of security. The Court disagreed. Writing for

four Justices, Justice Kagan explained that “[t]he law

guarantees [an incarcerated person] the right to practice

his faith free from unnecessary interference, including at

the moment the State puts him to death.” Id. at 726 (Kagan, J. concurring). Because Smith believed that his minister’s presence was integral to his faith and essential to

his spiritual search for redemption, Alabama’s policy excluding his minister from the execution chamber substantially burdened his religious exercise under RLUIPA. Id.

at 725.

Respondents contend that Holt supports the notion

that RLUIPA proscribes only conduct that coerces a prisoner to disobey his religion. Br. in Opp. at 18-21, Ramirez

v. Collier, No. 21-5592 (Sept. 8, 2021). But Holt discusses

coercion because that was the issue in that case, not because it is the only state activity proscribed by RLUIPA.

If anything, the State’s actions in this case are worse than

the actions in cases involving coercion. In those cases,

there may be some dispute about the extent of coercion

and the degree of interference with religious rights. See,

e.g., Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004)

(the coercion must “truly pressure[] the adherent to significantly modify his religious behavior”); New Doe Child

#1 v. Cong. of U.S., 891 F.3d 578, 590 (6th Cir. 2018) (coercion requires “substantial pressure”). But where, as

here, the State imposes an outright, prohibition on the religious activity sought, there can be no question that religious exercise is substantially burdened. See Yellowbear

9

v. Lampert, 741 F.3d 48, 56 (10th Cir. 2014) (Gorsuch, J.)

(holding that “flatly prohibiting Mr. Yellowbear from participating in an activity motivated by a sincerely held religious belief” could impose a substantial burden); Greene

v. Solano Cnty. Jail, 513 F.3d 982, 988 (9th Cir. 2008)

(“[A]n outright ban on a particular religious exercise is a

substantial burden on that religious exercise.”).

Respondents argue that if denying Mr. Ramirez’s requests imposed a substantial burden, then so too would

denying a request to transport an individual to an off-campus church or to provide him with religious paraphernalia

during the execution. Br. in Opp. at 19, Ramirez v. Collier, No. 21-5592 (Sept. 8, 2021). This argument is just

“another formulation of the ‘classic rejoinder of bureaucrats throughout history: If I make an exception for you,

I’ll have to make one for everybody, so no exceptions.’”

Holt, 574 U.S. at 368 (quoting Gonzales v. O Centro

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 436

(2006)). As this Court explained in Holt, it has “rejected

a similar argument in analogous contexts.” Id.

By completely denying Mr. Ramirez’s request to have

his pastor lay hands on him, while vocalizing prayers and

scripture, as he dies, the State is substantially burdening

his free exercise of religion. RLUIPA forbids TDCJ from

doing so.

B. The State’s Justifications for Denying Mr.

Ramirez’s Requests Do Not Withstand Strict Scrutiny.

Once Mr. Ramirez establishes that his “exercise of religion is grounded in a sincerely held religious belief” and

that the government’s action “substantially burden[s]

that exercise of religion,” the burden “shift[s]” to the gov-

10

ernment to show that substantially burdening the religious exercise of the “particular claimant,” Holt, 574 U.S.

at 361-63, is “the least restrictive means of furthering [a]

compelling interest.” 42 U.S.C. § 2000cc-1. Texas’s policy

of barring Mr. Ramirez from hearing prayers and having

the touch of his pastor in his last moments “must withstand strict scrutiny.” Dunn, 141 S. Ct. at 725 (Kagan, J.,

concurring). That standard is “exceptionally demanding.”

Holt, 574 U.S. at 364 (citation omitted). Even where a

state asserts a “compelling interest,” RLUIPA “does not

permit” the Court to give the state “unquestioning deference.” Id. at 363-64. “[C]onclusory statements about the

need to protect inmate security” do not meet a governmental entity’s burden under RLUIPA. Spratt v. R.I.

Dep’t of Corr., 482 F.3d 33, 40 n.10 (1st Cir. 2007). Nor do

conclusory statements about the efficacy of other, less restrictive alternatives. RLUIPA “requires the government to sho[w] that it lacks other means of achieving its

desired goal without imposing a substantial burden on the

exercise of religion.” Id. (alteration in original) (internal

quotation marks omitted). And, “[i]f a less restrictive

means is available for the Government to achieve its goals,

the Government must use it.” Holt, 574 U.S. at 365 (quoting United States v. Playboy Ent. Grp., Inc., 529 U.S. 803,

815 (2000)) (emphasis added). This prong of the analysis

requires at a minimum “some consideration [of] less restrictive alternatives,” Couch v. Jabe, 679 F.3d 197, 203

(4th Cir. 2012), accompanied by some “explanation . . . of

significant differences” that “render” the less restrictive

policies “unworkable,” Spratt, 482 F.3d at 42 (considering

less restrictive policies of other jurisdictions); accord

Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005).

The restrictive policy must be supported by “reasoned

judgment” and demonstrated by facts. Spratt, 482 F.3d

11

at 42 n.14. And, courts must “look[] beyond broadly formulated interests justifying the general applicability of

government mandates” and “scrutinize[] the asserted

harm” of denying the relief or alternative course of action

proposed by the religious claimant. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. at 431; see also 146

Cong. Rec. 16,698, 16,699 (2000) (joint statement of Sen.

Hatch and Sen. Kennedy on RLUIPA) (“policies

grounded on mere speculation, exaggerated fears, or

post-hoc rationalizations will not suffice to meet

[RLUIPA’s] requirements”).

Respondents have not and cannot meet that burden

here. Amici have either overseen the security of executions or have been spiritual advisors present in execution

chambers. Consistent with the historical practice in

Texas, amici all agree that the relief requested by Mr.

Ramirez would not be disruptive and that any concerns by

the state can be addressed through the implementation of

basic protocols.

1. Spiritual Advisors Have Long Played a Role in Executions.

1. There is a longstanding tradition of spiritual advisors providing prayer and support in the last moments before, and at the moment of, death of those executed by the

state. At the Founding, a clergyman’s “execution sermon” from the scaffold went hand-in-hand with “last

words[] and dying confessions of the prisoner.” Louis P.

Masur, Rites of Execution: Capital Punishment and the

Transformation of American Culture, 1776-1865 26

(1989). This clerical role “had become so formulaic that,

in 1791, William Smith . . . published a guide for ministers

[that contained] Suitable Devotions Before, and at the

Time of Execution.” Id. at 40 (internal quotation marks

12

omitted); see also Historical Newspaper Articles, Hartkemeyer v. Barr, No. 2:20-cv-00336 (S.D. Ind.), ECF No.

60-3, at 1-3. 1 These vocal devotions were spiritually critical for both the prisoner being executed and the clergy

ministering to them.

Federal executions have long recognized the hallowed

place of spiritual advisors and followed this tradition. The

first known federal execution, the hanging of Thomas

Bird in 1790, 2 incorporated “solemn religious exercises.”

See Portland, Cumberland Gazette, June 28, 1790 (Hartkemeyer, ECF No. 60-3, at 1). The practice of federal executions contemplated ministry from, and ritual performed by, clergy up to the place and time of death. 3 The

policy of incorporating clergy into federal executions continues today, as illustrated by the recent federal executions witnessed earlier this year and last year by five of

the spiritual-advisor amici.

Unsurprisingly, these American traditions were similar to English practices during the colonial era. See, e.g., Randall McGowen,

The Body and Punishment in Eighteenth-Century England, 59 J.

Mod. Hist. 651, 651 (1987) (“The condemned . . . were accompanied by

a clergyman who shadowed their last moments urging them to repent

or consoling them with the offer of divine forgiveness.”).

1

See “Historical Federal Executions,” United States Marshals

Service, https://www.usmarshals.gov/history/executions.htm (last

visited Sept. 27, 2021).

2

3

See May 10, Vergennes Gazette & Vt. & N.Y. Advertiser, May 29,

1800, Hartkemeyer, ECF No. 60-3, at 2 (reporting federal executions

in which condemned prisoners were “attended to the place of execution” by clergymen, where they prayed and expressed contrition);

The Execution of Edward F. Douglass and Thomas Benson for the

Murder of Ava A. Havens, Bos. Herald, Jul. 28, 1851, at 1 (reporting

federal executions in which clergymen accompanied and embraced

prisoners on the gallows).

13

Allowing spiritual advisors to deliver audible prayers

during an execution and place their hands on an individual

during their final moments has also been common practice

in Texas specifically. For example, there have been repeated reports of chaplains touching the prisoner’s leg or

ankle during an execution to offer spiritual comfort. See,

e.g., Murphy v. Collier, No. 4:19-cv-01106 (S.D. Tex.),

ECF No. 38-8, at 19:4-8 (Excerpt of TDCJ Chaplain

Wayne Moss’s testimony) (“[W]e’d put our hand, like, on

their ankle, kind of just to indicate a presence, you know,

so that they would feel that someone was there with

them.”). Former TDCJ chaplain Jim Brazzill, who was

present in the death chamber for more than 100 executions, has explained, “I usually put my hand on their leg

right below their knee. And I usually give them a squeeze

and let them know that I’m right there.” All Things Considered: Witness to an Execution, NPR (Oct. 12, 2000);

see also Pamela Colloff, The Witness, Tex. Monthly (Sept.

2014),

https://www.texasmonthly.com/articles/the-witness/, (“[Mr. Brazzil] had perhaps the most difficult job of

all; during his six-year tenure, it was he who stood in the

death chamber with the warden, one hand resting on the

condemned’s leg, and it was he who closed prisoners’ eyes

once they lost all sign of life.”). Similarly, former TDCJ

chaplain Richard Lopez described his practice of placing

his hands on an individual’s ankles as he receives the injection “until death occurs.” INTO THE ABYSS (IFC

Films 2011); see also Salatheia Bryant, Chaplains Offer

Faith to Those on Death Row, Hous. Chron. (July 30,

2007),

https://www.chron.com/life/houston-belief/article/Chaplains-offer-faith-to-those-on-death-row1806245.php (describing Mr. Lopez as standing at an individual’s “feet quietly commending her spirit to God” as

she took her last breath).

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Former TDCJ Chief Spokesperson Michelle Lyon,

who witnessed 278 executions in Texas, described this

practice as one of “the small courtesies that the prison

staff extended to the condemned.” Colloff, The Witness,

(noting that “the chaplain placed his hand on the right leg

of the restrained prisoner, just below the knee, to reassure him during his final moments.”). “By placing their

hand on the inmate's body at the time of injection, [spiritual advisors] emphasize the importance of being there

because they believe no one should have to die alone.”

Walter C. Long, The Constitutionality and Ethics of Execution-Day Prison Chaplaincy, 21 Tex. J. on C.L. & C.R.

1, 3 (2015) (footnote omitted).

2. The experiences of the amici spiritual advisors and

clergy affirm what has been proven through the above history and the practices of TDCJ chaplains—spiritual advisors can audibly pray and touch an individual without putting security at risk during an execution.

Father Mark O’Keefe served as Dustin Honken’s

“minister of record” during a federal execution last year.

Because he was a regular volunteer at the federal prison,

he had already undergone a background check. On the

day of the execution, Father O’Keefe was screened thoroughly by security and accompanied by an agent escort at

all times—except for the brief period during which he accepted Mr. Honken’s final confession. When it was time

for the execution to begin, Father O’Keefe was led to the

execution chamber. Mr. Honken was already strapped to

a gurney with an IV inserted into his body, wires attached

to him that appeared be for a heart monitor, and an oxygen gauge placed on his finger. In the presence of prison

officials and the agent escort, Father O’Keefe went to Mr.

Honken to administer his last rites. Father O’Keefe gave

him his final communion, placing a host on Mr. Honken’s

15

tongue, putting holy oil on his head and hands, and delivering several prayers out loud. Though he stepped back

while the lethal drugs were administered, after Mr.

Honken was pronounced dead, Father O’Keefe again

went to his body, blessed him, and prayed out loud. Vocal

prayer and touch are an important part of Catholic practice and were essential to Father O’Keefe’s ministry during the execution. For example, one of the basic things

that Catholic priests are trained to do when they visit

someone in the hospital is to touch the patient (with permission) while praying aloud because it establishes a sacred bond. Indeed, the last rites are not valid without

touching. And audible prayer provides spiritual assurance and comfort to those listening.

Sister Barbara Battista attended the federal executions of Keith Dwayne Nelson and William Emmett

LeCroy last year as their minister of record. Before she

was accepted as a minister of record for Mssrs. Nelson

and LeCroy, she was required to undergo a background

check. On the days of the executions, she was subjected

to extensive security screenings, including taking off her

shoes, going through a metal detector, and being searched

with a security wand. Sister Battista was present in the

death chambers during both executions, along with the

executioner, a federal marshal, and a high-ranking prison

official who stood by her throughout the proceedings. Although Mr. Nelson did not request that she pray audibly

for him, Sister Battista was permitted to speak with him

while he lay strapped to the gurney, conveying messages

from family and friends and other thoughts. As the lethal

drugs were administered to Mr. Nelson, she prayed silently, moving her lips. After Mr. Nelson died, she was

permitted to pray aloud over his body and touch parts of

it to anoint him with sacred oils. Mr. LeCroy, by contrast,

asked Sister Battista, to pray vocally for him. During his

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execution, she prayed out loud, reciting portions of the Divine Mercy Chaplet, which she and Mr. LeCroy had previously discussed. He joined at times until the lethal

drugs were administered. She continued her audible

prayers until he stopped breathing, after which she

blessed his body and, as with Mr. Nelson, anointed him

with oils. While neither Mr. Nelson nor Mr. LeCroy requested physical touch, Sister Battista views human touch

in this context an act of love and care that provides spiritual comfort during the individual’s return to God and religious affirmation that the individual—despite any misdeeds—is loved by God. Based on her experiences during

the recent federal executions, Sister Battista believes she

or other spiritual advisors could provide this comfort,

where requested, without interfering with the execution.

Dr. Yusuf Nur was present in the execution chamber

for the federal executions of Orlando Hall in 2020, and

Dustin Higgs in 2021. Like the other spiritual advisors at

recent federal executions, he was subjected to the background check required to become a minster of record and

went through a security search before each execution. In

addition, he was assigned a security escort who accompanied him into the death chamber for both executions.

During the executions, Dr. Nur recited aloud the Surah

Yaseen, a prayer in which the prayer giver asks for forgiveness of all sins before death. Both men joined him in

praying. After Mssrs. Hall and Higgs died, Dr. Nur went

to their bodies, where he was able to touch them while reciting out loud the Salat al-Janazah, an Islamic funeral

prayer that asks God for forgiveness on behalf of the deceased. The ability to deliver verbal prayers in this context was critical: It allowed the two men to spiritually connect with Dr. Nur and exercise their faith in their final

moments, as well as receive Dr. Nur’s religious affirmations of assurance, kindness, and compassion. Although

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Dr. Nur did not have the opportunity to touch the men

before their deaths, he believes he could have done so

without disrupting the execution and that this act would

have played a vital role in offering spiritually soothing

comfort to the men, affirming their humanity after they

had been denied the benefit of any human touch for years

or decades.

Rev. Dale Hartkemeyer served as the spiritual advisor for Wesley Purkey during a 2020 federal execution.

He also was subject to stringent security protocols before

attending the execution, and he was accompanied by an

escort who stayed near him throughout the proceeding.

When Rev. Hartkemeyer entered the execution chamber,

Mr. Purkey was strapped to a gurney with an IV inserted.

He was permitted to stand next to Mr. Purkey to greet

him and talk with him before the proceeding began. Once

officials began to administer the lethal drugs to Mr.

Purkey, Rev. Hartkemeyer chanted audibly, repeating a

sutra (Buddhist scripture) until the executioner announced the time of death. He was then invited to stand

next to Mr. Purkey’s body and resume his chanting. The

ability to chant vocally as Mr. Purkey passed was vital as

a spiritual matter: For Buddhists, a person’s state of

mind at the moment of death, when their consciousness

transitions, is significant for karmic reasons. Rev. Hartkemeyer’s presence and chanting provided spiritual consolation and compassion to help Mr. Purkey attain peace

of mind and equanimity as he left this life. Without Rev.

Hartkeymeyer’s presence and chanting, Mr. Purkey

would have been less likely to achieve the full liberation

and peaceful transition that death represents in the Buddhist faith.

Rev. Bill Breeden was present in the execution chamber for the federal execution of Corey Johnson in January

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2021. As a minister of record for another prisoner on

death row, Rev. Breeden had already submitted to a background check. Like the other spiritual advisors who attended federal executions, he went through a metal detector and was searched before being admitted to the prison.

In addition, the prison chaplain escorted him to the death

house, where a member of the execution team walked with

him into the execution chamber and stood next to him during the entire process. As Mr. Johnson lay strapped to

the gurney, Rev. Breeden prayed aloud, giving thanks for

Mr. Johnson’s life. Rev. Breeden believes the ability to do

so was critical to his ministry. For him, praying internally

is a personal affair, but praying vocally allowed him to

connect with Mr. Johnson and offer him spiritual comfort

as well as a reminder of his humanity as he passed from

this world. Though he was kept at a distance from Mr.

Johnson during the execution, Rev. Breeden was permitted to place his hands on Mr. Johnson’s heart after he died

and bless him with another audible prayer. Mr. Johnson

did not specifically request that Rev. Breeden touch him

during the execution. But for those who do ask, Rev.

Breeden believes that denying the request has profound

spiritual implications because touch is spiritually healing,

as made clear by Acts 8:14 (New King James) (“Then Peter and John placed their hands on them, and they received the Holy Spirit.”) and Mark 10:13-16 (English

Standard Version) (“And they were bringing children to

him, that he might touch them; and the disciples rebuked

them. But when Jesus saw it, he was indignant, and said

to them, ‘Let the children come to me; do not hinder them,

for to such belongs the kingdom of God. . . .’ And he took

them in his arms and blessed them, laying his hands on

them.”).

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Sister Helen Prejean witnessed the Virginia execution of Joseph O’Dell in 1997. Immediately before the execution began, she was permitted to visit Mr. O’Dell in the

death chamber. He was strapped tightly to a gurney with

IVs in both arms when she arrived. Sister Prejean stood

near his head with her hand on his shoulder and prayed

out loud. For Sister Prejean, the ability to touch Mr.

O’Dell while praying was a religious affirmation of Mr.

O’Dell’s humanity and conveyed to him the message that

he still retained his dignity as a child of God as he passed

over into death. Sister Prejean believes that spiritual advisors should be permitted to touch and pray aloud with

those being executed and can do so without disruption to

the execution.

In none of the instances discussed above did amici’s

audible prayers or the touching of the prisoner cause any

issues with the execution. Rather, in amici’s experience,

vocal prayer and physical touch can have a calming effect,

connecting individuals to the spiritual advisor on a fundamental level and providing them with a final opportunity

to connect with and practice their faith as they die.

Tellingly, despite all of these instances of audible

prayer and physical touching during executions by spiritual advisors and chaplains—both in Texas and elsewhere—“[n]owhere . . . has the presence of a clergy member (whether state-appointed or independent) disturbed

an execution.” Dunn, 141 S. Ct. at 726 (Kagan, J., concurring).

2. The Presence of Spiritual Advisors Does Not Pose a Security Concern.

1. The experiences of amici who have served as corrections leaders likewise counsel in favor of granting Mr.

Ramirez’s request. Combined, these amici have observed

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or overseen more than 50 executions and all agree that

Mr. Ramirez’s religious practices can be accommodated

while maintaining an orderly and secure execution. The

primary concern with conducting any execution, they confirm, is the proper administration of the IV. As long as

spiritual advisors, like all other participants, remain clear

of the IV lines, their prayers or touch would not cause any

issues with the execution. The corrections amici agree

that security screenings and proper physical placement of

the spiritual advisor can adequately mitigate any security

concerns.

Mr. Justin Jones worked at the Oklahoma Department of Corrections for more than 35 years, serving as the

department’s director from 2005 to 2013. During his tenure as director, Mr. Jones oversaw 28 executions and was

in the viewing chamber for 27 of these executions. Although Mr. Jones does not recall an individual requesting

that a spiritual advisor be present in the death chamber

itself during the execution, he would have granted the request if he had received one. He does not believe that an

advisor’s presence in the execution chamber, or that advisor’s audible prayer or physical touch, would interfere

with the execution. In his experience, in addition to conducting security screenings of the advisor, allowing the

spiritual advisor to stand at and touch the shoulders, ankles, or feet of the individual, depending on the layout of

the particular room, would mitigate any security risks.

Mr. Dan Pacholke worked at the Washington State

Department of Corrections for 33 years, starting as a corrections officer and retiring as secretary, the highest position within the department. He has witnessed three executions and overseen one during his career, which included responsibility for the security of those proceed-

21

ings. Mr. Pacholke does not recall an individual requesting that a spiritual advisor be present in the chamber during any executions carried out under his supervision,

though he would have granted the request if he had received one. Consistent with other amici, in Mr. Pacholke’s

experience, the proper placement of the IV line is the chief

concern during executions. Audible prayer does not affect

this concern in any way, and is not disruptive, and he believes it should be permitted. Moreover, he believes that,

through adequate security measures, such as screenings,

training, and background checks, as well as specific instructions to the advisor on where to stand during the execution, touch requests like Mr. Ramirez’s can easily be

accommodated with little risk of disruption. Specifically,

physical touch during an execution would not be disruptive as long as the advisor places his hands on the individual’s shoulder, ankles, or feet so as to avoid any interference with the IV.

Mr. Emmitt Sparkman has more than forty-six years

of experience working in adult and juvenile institutional

and community corrections. Among other positions, he

served as the Deputy Commissioner of Institutions for the

Mississippi Department of Corrections from 2002 to 2013.

Mr. Sparkman also served as Superintendent of Mississippi State Penitentiary, known as Parchman, where the

state’s executions are carried out. In his role, Mr. Sparkman helped draft Mississippi’s protocols for lethal injections, which he and his department modeled after Texas’s

protocols. Mr. Sparkman oversaw 17 state executions and

chaplains were routinely allowed in the execution chamber. In his experience, the presence of a religious adviser

has a calming effect on the individual being executed

which may lead to fewer disruptions. During the execution, the chaplain would enter the chamber after the indi-

22

vidual was secured on a gurney and would talk to the individual, pray, and/or recite religious verses. These activities never interfered with an execution. Further, with

proper security screening, he believes spiritual advisors

may safely place their hands on an individual’s shoulders,

ankles, or feet.

Mr. Eldon Vail served as the Secretary of the Washington State Department of Corrections from 2007 to

2011. He has more than 30 years of experience at the Department, starting as a corrections officer. He has overseen three executions, sitting in the chamber during one

of them. In that execution, Mr. Vail recalls a spiritual advisor being present in the room, near the individual’s feet,

and praying audibly throughout the process. Neither the

advisor’s presence nor his prayer was disruptive to the execution. To the contrary, in Mr. Vail’s experience, the

presence and prayer of the spiritual advisor had a calming

effect on the prisoner. Mr. Vail does not believe that the

individual requested his advisor lay hands on him. But if

he had made this request, Mr. Vail would have accommodated it and allowed the spiritual advisor to touch either

the prisoner’s feet, ankles, or shoulder. He would have

mitigated security concerns by thoroughly vetting the advisor and setting out expectations for the advisor prior to

the event.

2. Given the long history of spiritual care during executions and the experiences of amici, it is not surprising

that Respondents do not identify any particular concerns

raised by Mr. Ramirez’s requests. In fact, they concede

that Mr. “Ramirez himself may pray aloud as a final statement” in the execution chamber. Br. in Opp at 19-20,

Ramirez v. Collier, No. 21-5592 (Sept. 8, 2021). Respondents do not—nor could they credibly—explain why Pastor

Moore’s audible prayers pose a security concern but Mr.

23

Ramirez’s do not. Nor do Respondents identify why Pastor Moore’s physical touch poses a risk of any kind, particularly in light of the history from Texas and other jurisdictions recounted above.

Indeed, the record in Gutierrez v. Saenz establishes

that the State could easily accommodate Mr. Ramirez’s

requests. There, this Court granted a stay of execution

when Mr. Gutierrez requested that his spiritual advisor

be present in the execution chamber. This Court directed

the district court to determine on remand “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.” Gutierrez v. Saenz, 141 S. Ct. 127, 128

(2020) (mem.). Relying on detailed findings of facts regarding executions in Texas, the district court concluded

unequivocally that allowing Mr. Gutierrez to have the assistance of a spiritual advisor would not interfere with the

execution. See Gutierrez v. Saenz, No. 1:19-CV-00185

(S.D. Tex.), ECF No. 124 (Nov. 24, 2020).

Mr. Gutierrez made clear that he wanted “his spiritual

advisor to place his hand on [Mr.] Gutierrez’s shoulder

and pray out loud throughout the execution.” Id. at 11. In

the context of that request, the district court determined

that the “evidence . . . does not demonstrate that serious

security concerns would result from allowing inmates the

assistance of a chosen spiritual advisor in their final moments” and that “[t]he Texas prison administration cannot blindly abdicate its obligation to safeguard an inmate’s

religious rights in the spiritually charged final moments

of life.” Id. at 29. The district court highlighted that, between 1982 and March 2019, the presence of a chaplain in

the execution chamber did not cause a security incident in

any of the 560 executions Texas conducted. Id. at 3.

24

The court also cited the testimony of Steve J. Martin,

a former TDCJ general counsel who helped develop

Texas’s original prison execution protocols for the lethal

injection. Mr. Martin testified that the execution chamber is one of the most predictable and safe environments

in a prison setting. Id. at 23.

In the context of prison management, the

TDCJ execution process, from a safety and

security standpoint, is not materially laden

with greater risks of harm to staff, prisoners, and the public than any number of

other commonplace activities, processes,

practices, protocols and regulations that are

present and occur on a daily basis in the

prison setting. . . . The TDCJ execution process, including the presence of a spiritual

advisor of the condemned prisoner’s choosing, represents the most predictable and

highly controlled environment in a prison

setting.

Id. at 23 (emphasis added).

As in Mr. Gutierrez’s case, 4 Mr. Ramirez’s requests

do not pose a risk to the State that cannot be ameliorated

through other security measures short of an outright denial.

4

Mr. Gutierrez’s execution date has been vacated pending the resolution of Mr. Ramirez’s appeal. See Gutierrez v. Collier, No. 1:21CV-00129 (S.D. Tex.), ECF No. 5.

25

3. The State’s Complete Ban on Audible Prayer and

“Laying of Hands” Is Not the Least Restrictive Alternative.

Rather than explaining what specific compelling interests are implicated by Mr. Ramirez’s requests and why

less restrictive means cannot alleviate those concerns, Respondents instead attempt to shift the burden to Mr.

Ramirez. Respondents contend that it is Mr. Ramirez’s

obligation to affirmatively identify a less restrictive policy. Br. in Opp. at 22–29, Ramirez v. Collier, No. 21-5592

(Sept. 8, 2021). But this Court has made clear that, under

RLUIPA, it is the State that must come forward with explanations for why a less restrictive alternative is not

available. Holt, 574 U.S. at 364. The State has failed to

carry that burden here.

In any event, a less restrictive policy is self-evident. It

is the one Mr. Ramirez requested—to have Pastor Moore

utter prayers during Mr. Ramirez’s execution while placing his hands on Mr. Ramirez as a final blessing. A number of executions have been carried out in just this way,

including in Texas, without incident. Pastor Moore has

already completed spiritual advisor training by TDCJ—

an extra security measure not even required for the amici

spiritual advisors who witnessed the recent federal executions—and will be subject to stringent security screenings

upon arriving at the TDCJ facility on the day of the execution. In addition to the orientation Pastor Moore attended, under TDCJ protocol, outside spiritual advisors

must pass a security background search before the scheduled execution date. 5

Respondents approved Mr.

See Robert Arnold, Here Are the Rules Spiritual Advisors Must

Follow To Be Present Inside Texas Execution Chamber, KPRC Hou.

5

26

Ramirez’s request to have Pastor Moore in the chambers,

acknowledging that his presence does not pose a heightened security concern. On the day of the execution, Pastor Moore could stand at Mr. Ramirez’s side and touch his

shoulder on the side not receiving the injection or stand at

his feet and touch his ankles, far away from the site of the

injection, to alleviate any concerns about disruption.

Moreover, in amici’s experience, outside spiritual advisors present in the execution chamber are sometimes

assigned an “escort” who does not leave the advisor’s side.

That individual could even stand next to the spiritual advisor as they lay hands on the prisoner, further minimizing any risk of disruption to the execution. Adopting practices like these, which are used by other “well-run institutions,” is just one of many options that Texas could pursue

to protect its security interests while also allowing Mr.

Ramirez and others who will be executed to exercise their

faith one final time in their last moments, in accordance

with their sincerely held religious beliefs. See Holt, 574

U.S. at 368; see also Dunn, 141 S. Ct. at 726 (Kagan, J.,

concurring) (noting that the state may “do a background

check on the minister; it can interview him and his associates; it can seek a penalty-backed pledge that he will obey

all rules.”). But “[w]hat the State cannot do, consistent

with strict scrutiny, is simply presume that every clergy

member will be untrustworthy—or otherwise said, that

only the harshest restriction can work.” Id.

(April 24, 2021), https://www.click2houston.com/news/investigates/2021/04/24/here-are-the-rules-spiritual-advisors-must-followto-be-present-inside-texas-execution-chamber/.

27

CONCLUSION

For the foregoing reasons, the State’s policy violates

RLUIPA, and the decision below should be reversed.

Respectfully submitted,

DAVID D. COLE

DANIEL MACH

DAVID C. FATHI

HEATHER L. WEAVER

JENNIFER A. WEDEKIND

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, N.W.

Washington, DC 20005

CASSANDRA STUBBS

BRIAN STULL

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

201 W. Main St., Suite 402

Durham, NC 27701

SEPTEMBER 27, 2021

LISA S. BLATT

Counsel of Record

CHARLES L. MCCLOUD

AYLA S. SYED

BRYAN A. CZAKO

WILLIAMS & CONNOLLY LLP

725 Twelfth Street, N.W.

Washington, DC 20005

(202) 434-5000

lblatt@wc.com

Counsel for Amici Curiae