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

FORMER PRISON OFFICIALS

AS AMICI CURIAE

IN SUPPORT OF PETITIONER

__________

September 27, 2021

DAVID C. FREDERICK

Counsel of Record

CATHERINE M. REDLINGSHAFER

MATTHEW J. WILKINS

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dfrederick@kellogghansen.com)

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

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

INTRODUCTION ....................................................... 2

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

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

I. TDCJ’S AND OTHER JURISDICTIONS’

PAST PRACTICES PROVE THAT TDCJ

CAN ACHIEVE A SECURE EXECUTION

THROUGH LESS RESTRICTIVE MEANS

THAN PROHIBITING A SPIRITUAL

ADVISOR FROM LAYING HANDS

ON THE CONDEMNED AND AUDIBLY

PRAYING ......................................................... 5

A. Texas And Other Jurisdictions Have

A Long History Of Safely Allowing

Spiritual Advisors To Lay Hands On

The Condemned During Executions .......... 6

B. Texas And Other Jurisdictions Have

A Long History Of Safely Allowing

Spiritual Advisors To Pray And

Converse With The Condemned During

Executions ................................................... 9

II. LESS RESTRICTIVE MEANS EXIST

FOR TDCJ TO ACHIEVE ITS ALLEGED

SECURITY INTEREST IN ENSURING

AN EFFICIENT EXECUTION...................... 11

A. TDCJ’s Current Execution Protocol ......... 12

ii

B. TDCJ Could Amend Its Protocol To

Allow For Physical Contact Between

The Spiritual Advisor And The

Condemned And Audible Prayer

Without Jeopardizing The Execution

Process....................................................... 16

CONCLUSION.......................................................... 20

iii

TABLE OF AUTHORITIES

Page

CASES

Dunn v. Smith, 141 S. Ct. 725 (2021) ................3, 4, 6,

7, 9, 11

Gutierrez v. Saenz, No. 1:19-cv-00185, ECF No.

124 (S.D. Tex. Nov. 24, 2020) ................................ 4

Holt v. Hobbs, 574 U.S. 352 (2015) ....................... 3, 6,

9, 16, 17

Procunier v. Martinez, 416 U.S. 396 (1974)................ 5

Ray v. Commissioner, Alabama Dep’t of Corr.,

915 F.3d 689 (11th Cir.), stay vacated, 139 S.

Ct. 661, 661 (2019)................................................. 9

Spratt v. Rhode Island Dep’t of Corr., 482 F.3d

33 (1st Cir. 2007) ................................................. 17

Thornburgh v. Abbott, 490 U.S. 401 (1989) ............ 5-6

Washington v. Klem, 497 F.3d 272 (3d Cir.

2007)..................................................................... 17

Yellowbear v. Lampert, 741 F.3d 48 (10th Cir.

2014)..................................................................... 17

STATUTES AND RULES

Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq. ... 3, 20

42 U.S.C. § 2000cc-1(a) .......................................... 3

Sup. Ct. R.:

Rule 37.3(a) ............................................................ 1

Rule 37.6 ................................................................ 1

iv

ADMINISTRATIVE MATERIALS

Texas Dep’t of Crim. J.:

Death Row Information (last updated July 1,

2021), https://www.tdcj.texas.gov/death_row/

dr_executed_offenders.html .................................. 2

Execution Procedure, Gutierrez v. Collier,

No. 1:21-cv-00129, ECF No. 1-2, Ex. 2 (S.D.

Tex. Aug. 25, 2021) ............................12, 14, 15, 18

OTHER MATERIALS

Chaplain Discusses ‘Death House’ Ministry,

NPR, Fresh Air Podcast (May 19, 2008),

https://www.npr.org/templates/story/story.

php?storyId=90526632 ...............................7, 10, 18

Expert Rep. of Steve J. Martin, Gutierrez

v. Saenz, No. 1:19-cv-00185, ECF No. 109

(S.D. Tex. Sept. 22, 2020) .................................... 17

Michael Graczyk, Death Row’s last human

touch, Seattle Times (Oct. 6, 2000), https://

archive.seattletimes.com/archive/?date=

20001006&slug=TT1S1QUC3 ...................... 7-8, 18

In Texas, Frequency of Executions Makes Grisly

Task Seem Routine, Chi. Trib. (May 25,

1997)..................................................................... 18

Interview with Michelle Lyons, via Zoom (Sept.

21, 2021) ................................................................. 7

Jt. Mot. To Dismiss, Smith v. Dunn, No. 2:20cv-01026-RAH, ECF No. 57 (M.D. Ala. June

16, 2021) ............................................................... 11

v

Mary Milz, The nun of death row stands against

the death penalty while providing spiritual

companionship to the condemned, NBC

WTHR 13 (Dec. 17, 2020), https://www.wthr.

com/article/news/local/nun-of-death-rowsister-barbara-battistaterre-haute-federalpenitentiary/531-c692ca5c-c82c-45d5-9e031929c90b9cf1 ....................................................... 11

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

July 19, 2019):

Dep. Tr. of Thomas Brouwer, ECF No. 38-6 ...... 16

Dep. Tr. of Lorie Davis, ECF No. 38-7 ................ 19

Dep. Tr. of Wayne Moss, ECF No. 38-8 .......... 8, 18

Carroll Pickett, Texas prison chaplain: ‘I’ve

come to see the death penalty as totally

wrong,’ The Guardian (June 26, 2013),

https://www.theguardian.com/world/2013/

jun/27/capital-punishment-texas-pickett ............. 7

Dick Reavis, Charlie Brooks’ Last Words, Texas

Monthly (Feb. 1983) ............................................ 10

Witness to an Execution, Story Corps, Podcast

(Oct. 20, 2000), https://storycorps.org/stories/

witness-to-an-execution/.............................8, 10, 18

INTEREST OF AMICI CURIAE 1

Amici are former prison officials familiar with

execution protocols. Each amicus has participated in

or witnessed multiple executions, and two amici have

helped craft execution protocols. Collectively, amici

have witnessed more than 400 executions, most of

which were performed by the Texas Department of

Criminal Justice (“TDCJ”).

Steve J. Martin is a career corrections professional

with nearly 50 years of experience in confinement operations. He began his career as a correctional officer

for TDCJ and, after earning his juris doctor, eventually became TDCJ’s General Counsel and Executive

Assistant to the Director. In that role, Mr. Martin

helped develop programs for death row inmates. He

also witnessed approximately four executions.

Michelle Lyons is a former spokesperson for TDCJ.

In that capacity (and as a death-row reporter for the

Texas newspaper the Huntsville Item before that), she

witnessed and was TDCJ’s public face for nearly 300

executions.

Dora Schriro is a former Director of two state correctional systems – the Missouri Department of Corrections and the Arizona Department of Corrections. In

these roles, Dr. Schriro served as the State’s liaison to

the Supreme Court of the United States. She oversaw

revision of each state system’s execution protocols and

participated in more than 40 executions.

1 Pursuant to Supreme Court Rule 37.6, counsel for amici

represent that they authored this brief in its entirety and that

none of the parties or their counsel, nor any other person or

entity other than amici or their counsel, made a monetary

contribution intended to fund the preparation or submission of

this brief. Pursuant to Rule 37.3(a), counsel for amici also represent that all parties have consented to the filing of this brief.

2

Amici take no position on the administration of

the death penalty in general or petitioner’s crimes

in particular. Amici instead submit this brief to

aid the Court in evaluating the lawfulness of TDCJ’s

policies prohibiting spiritual advisors from, in the

condemned’s last moments, (1) physically touching the

condemned and (2) praying audibly. Amici address

whether those prohibitions constitute the least

restrictive means available to the State to achieve

some compelling interest. Based on amici ’s expertise

and experience, amici respectfully submit that the

answer is no: less restrictive means exist, for the

reasons that follow.

INTRODUCTION

Petitioner John Ramirez does not ask for his life,

only the right to spiritual comfort during his last

moments. Specifically, he wants his spiritual advisor

(1) to lay hands on him and (2) to pray audibly, but

reverently, in his last moments.

These practices were common in the State of Texas

until recently. Texas has executed 572 people since

1982. See TDCJ, Death Row Information (last updated July 1, 2021), https://www.tdcj.texas.gov/death_

row/dr_executed_offenders.html. In most of those

executions, TDCJ permitted spiritual advisors to

lay hands on the condemned during the execution.

Likewise, up until recently, it was common for TDCJ

to permit the spiritual advisor to audibly pray at

the time of death. Never did these practices cause a

disruption or security threat during the execution.

Petitioner requested the same spiritual comfort

during his execution that those who came before him

received. But TDCJ denied that request, taking the

novel position that allowing a spiritual advisor to

make physical contact with him or to pray out loud

during the execution would pose an undue security

3

threat. TDCJ now argues that its unconditional

refusal to allow these practices is the least restrictive

means available to ensure the security of the execution process.

Amici disagree.

SUMMARY OF ARGUMENT

The Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) states that the government shall not “impose a substantial burden” on an

inmate’s “religious exercise” unless that burden can

withstand strict scrutiny, meaning the policy must be

“the least restrictive means of furthering [a] compelling governmental interest.” 42 U.S.C. § 2000cc-1(a).2

That standard is “ ‘exceptionally demanding.’ ” Dunn

v. Smith, 141 S. Ct. 725, 725 (2021) (Kagan, J.,

concurring in denial of application to vacate injunction) (quoting Holt v. Hobbs, 574 U.S. 352, 364 (2015)).

“If any ‘less restrictive means is available for the

Government to achieve its goals, then the Government

must use it.’ ” Id. (quoting Holt, 574 U.S. at 365) (emphasis added).

Here, means less restrictive than TDCJ’s absolute

ban are available for achieving a secure execution.

TDCJ’s own past practices, as well as the current and

past practices of other jurisdictions, show this. Amici

also identify, based on their experience, numerous

potential protocols short of an absolute ban that TDCJ

could use to protect the security and dignity of the

2 Amici understand that the Court first must consider whether

TDCJ’s policy “substantially burdens” the free exercise of

petitioner’s religion. If the Court so finds, then TDCJ will have

to prove that its policies are necessary for TDCJ to achieve a

“compelling governmental interest” and that the policies are “the

least restrictive means” of doing so. Given amici ’s expertise, this

brief focuses exclusively on the “least restrictive means” prong of

the analysis.

4

execution chamber while accommodating petitioner’s

religious beliefs.

First, decades of past practice in Texas and other

jurisdictions confirm that less restrictive means can

preserve the security of the execution while also

allowing a spiritual advisor to touch the condemned

and audibly pray during an execution. Between 1982

and 2019, a chaplain would physically touch the

condemned during the majority of executions in

Texas. Likewise, Texas and other jurisdictions historically have allowed spiritual advisors to pray audibly

during executions. “The presence of a chaplain in the

execution chamber did not cause any security incident

during those years.” Order at 3, Gutierrez v. Saenz,

No. 1:19-cv-00185, ECF No. 124 (S.D. Tex. Nov. 24,

2020). This long history of safely allowing a spiritual

advisor to lay hands on and pray with the condemned

as he lay dying “shows that a prison may ensure security without barring” these practices. Dunn, 141 S. Ct.

at 725 (Kagan, J., concurring in denial of application

to vacate injunction).

Second, TDCJ’s execution protocols already allow

a spiritual advisor to stay with the condemned in

the execution chamber during the execution. The

marginal risk (if any) of permitting a spiritual advisor

also to lay his hands on the condemned and audibly

pray is miniscule at most and may be neutralized

and safely managed through proper protocols. These

protocols could include:

 Providing a security escort for the spiritual

advisor to guard against mischief;

 Reasonably restricting where the spiritual

advisor may stand in the execution chamber;

 Reasonably restricting where the spiritual

advisor may touch the condemned;

5

 Reasonably restricting when the spiritual advisor

may begin laying hands on the condemned;

 Reasonably restricting when the spiritual advisor

may pray;

 Reasonably restricting the volume of the spiritual

advisor’s prayers;

 Requiring the spiritual advisor to stop speaking

whenever the condemned or a prison official

speaks.

Protocols such as these are far less restrictive than

TDCJ’s absolute ban and would, in amici ’s experience,

allow a spiritual advisor to lay hands on and audibly

pray with the condemned during his execution without threatening the security of the procedure.

ARGUMENT

TDCJ’s ban on spiritual advisors’ laying hands on

the condemned and praying aloud during an execution

is not the least restrictive means of ensuring a smooth

and secure execution. Texas and other jurisdictions

historically have permitted these practices without

incident. And numerous less restrictive procedures

exist that TDCJ could implement to accommodate

these practices while still achieving a smooth and

secure execution.

I. TDCJ’S AND OTHER JURISDICTIONS’

PAST PRACTICES PROVE THAT TDCJ

CAN ACHIEVE A SECURE EXECUTION

THROUGH LESS RESTRICTIVE MEANS

THAN PROHIBITING A SPIRITUAL ADVISOR FROM LAYING HANDS ON THE

CONDEMNED AND AUDIBLY PRAYING

This Court often looks to past practice to determine

“the need for a particular type of restriction.” Procunier

v. Martinez, 416 U.S. 396, 414 n.14 (1974), overruled

in part on other grounds by Thornburgh v. Abbott,

6

490 U.S. 401 (1989). If a given practice occurred without incident over many years in many places, then

restrictions on that practice are of dubious necessity.

For example, in Dunn v. Smith, 141 S. Ct. 725 (2021),

this Court sustained the condemned’s challenge to

Alabama’s refusal to allow his pastor to enter the

execution chamber. Justice Kagan’s concurrence

explained that this was in part because the “past

practice, in Alabama and elsewhere,” of “allow[ing]

clergy members . . . to attend an inmate’s execution”

“ ‘suggest[ed] that Alabama could satisfy its security

concerns through a means less restrictive’ than its

current prohibition.” Id. at 725-26 (Kagan, J., concurring in denial of application to vacate injunction)

(quoting Holt v. Hobbs, 574 U.S. 352, 368-694 (2015))

(brackets omitted).

Here, both Texas and other jurisdictions historically

have permitted a condemned man’s spiritual advisor

to lay hands on and audibly pray with the condemned

as he dies. This long history, and the complete

absence of related security incidents, shows that TDCJ

can preserve the security of petitioner’s execution

without banning petitioner’s pastor from engaging in

those activities.

A. Texas And Other Jurisdictions Have A

Long History Of Safely Allowing Spiritual

Advisors To Lay Hands On The Condemned

During Executions

Texas has a long history of permitting a condemned

man’s spiritual advisor to lay hands on him during

his execution. Before 2019 (when TDCJ amended its

execution policies to ban clergy from the execution

7

chamber3), this practice was actually the norm. Ms.

Lyons, one of the amici here, personally witnessed

nearly 300 executions performed by TDCJ between

2000 and 2012. According to her, a chaplain touched

the condemned man as he died during all but two

or three of those executions. Interview with Michelle

Lyons, via Zoom (Sept. 21, 2021) (notes on file with

counsel).

Many TDCJ chaplains have spoken publicly of this

practice over the course of decades, making clear

that it was the norm from 1982 (when Texas resumed

executions in the modern era) until 2019. Reverend

Carroll Pickett, for example, was a TDCJ chaplain

from 1980 to 1995 and ministered to 95 executed

inmates. He would “stand right next to [the condemned]” in the execution chamber and “put [his]

hand on their right leg where [he] could feel a pulse.”

Carroll Pickett, Texas prison chaplain: ‘I’ve come to

see the death penalty as totally wrong,’ The Guardian

(June 26, 2013).4 Sometimes, Rev. Pickett even held

condemned men’s hands as they were being put to

death. See Chaplain Discusses ‘Death House’ Ministry,

NPR, Fresh Air Podcast at 7:39-8:00 (May 19, 2008).5

Rev. Pickett’s successor, Jim Brazzil, continued this

practice. Chaplain Brazzil normally would “rest[ ]” his

hand on the condemned man’s leg during the execution. Michael Graczyk, Death Row’s last human touch,

3 In April 2021, in response to this Court’s decision in Dunn,

TDCJ amended its policy to again permit clergy to enter the

execution chamber.

4 See https://www.theguardian.com/world/2013/jun/27/capital-

punishment-texas-pickett.

5 See https://www.npr.org/templates/story/story.php?storyId=

90526632.

8

Seattle Times (Oct. 6, 2000).6 He recounted how he

would “usually put my hand on their leg right below

their knee, you know, and I usually give ‘em a

squeeze” to “let ‘em know I’m right there.” Witness to

an Execution, Story Corps, Podcast at 7:03-11 (Oct. 20,

2000) (emphasis added from text in transcript).7

The practice of laying hands on the condemned in

the execution chamber continued until 2019. In June

of that year, a TDCJ chaplain testified that, prior to

TDCJ’s 2019 amendment to the execution protocol,

the spiritual advisor present at the execution “always”

asked the condemned man if he would like the

spiritual advisor to make physical contact during the

execution. Dep. Tr. of Wayne Moss at 18:25-19:16,

Murphy v. Collier, No. 4:19-cv-01106, ECF No. 38-8

(S.D. Tex. July 19, 2019). According to the chaplain,

the condemned men “more times than not” accepted

this invitation. Id.

Thus, between 1982 and 2019, the vast majority of

the more than 550 inmates executed in Texas died

with the hands of a spiritual advisor resting on them.

And out of these hundreds of instances, not once did

the spiritual advisor’s touch cause a security incident.

This long history shows that Texas does not need

an absolute prohibition on spiritual advisors’ laying

hands on the condemned to maintain the security and

dignity of the execution chamber.

Texas’s history is not unique in this regard. Other

jurisdictions likewise long have afforded the condemned the right of human contact in their last

moments. In Alabama, for example, “the Chaplain

6 See https://archive.seattletimes.com/archive/?date=20001006&

slug=TT1S1QUC3.

7 See https://storycorps.org/stories/witness-to-an-execution/.

9

may . . . touch the inmate’s hand as a lethal cocktail

of drugs is administered.” Ray v. Commissioner,

Alabama Dep’t of Corr., 915 F.3d 689, 696-97 (11th

Cir.), stay vacated on other grounds, 139 S. Ct. 661,

661 (2019).

Amici also urge the Court to consider amici ’s

considerable experience, which includes representing

TDCJ in the media, drafting execution protocols, and

witnessing hundreds of executions. In most of those

executions, a chaplain touched the condemned man as

he died. In none of the executions did the spirtual

advisor’s touch pose a security threat or disrupt the

execution in any way.

In light of (1) TDCJ’s 37-year-long tradition of allowing spiritual advisors to touch the condemned during

executions (without incident), (2) other jurisdictions’

history of allowing the same practice (without incident), and (3) amici ’s own experiences witnessing this

practice (without incident), TDCJ’s assertion that only

an absolute ban on spiritual advisors’ touching the

condemned can guarantee the security of an execution

has no merit. See Dunn, 141 S. Ct. at 726 (Kagan, J.,

concurring in denial of application to vacate injunction) (“Nowhere, as far as I can tell, has the presence

of a clergy member . . . disturbed an execution. That

record ‘suggests that [Texas] could satisfy its security

concerns through a means less restrictive’ than its

current prohibition.”) (quoting Holt, 574 U.S. at 36869).

B. Texas And Other Jurisdictions Have A

Long History Of Safely Allowing Spiritual

Advisors To Pray And Converse With The

Condemned During Executions

Texas has a long, uneventful history of allowing

spiritual advisors to pray and speak out loud during

10

executions. Indeed, at the very first execution Texas

carried out after reinstating the death penalty in

1982, the condemned man’s spiritual advisor spoke to

him in the execution chamber. The condemned man

chanted a verse from the Qur’an as part of his last

statement, after which his spiritual advisor (who was

not a TDCJ employee) said to him, “May Allah admit

you to paradise.” Dick Reavis, Charlie Brooks’ Last

Words, Texas Monthly (Feb. 1983). The spiritual

advisor’s contribution caused no disruption. Id.

During his 15-year tenure as a TDCJ chaplain,

Rev. Pickett also prayed with the condemned in their

last moments:

The time came, and . . . he crawled up and he said,

“hold my hand.” And I said “alright, are you

ready?” We started repeating [the prayer] “The

Lord is my Shepard,” and the drug went to work.

So I went ahead and finished it as he was dying.

Chaplain Discusses ‘Death House’ Ministry, NPR,

Fresh Air Podcast at 7:39-8:00. Rev. Pickett’s experience shows that TDCJ allowed spiritual advisors not

just to pray with the condemned man as he died, but

also to have unscripted conversations. See Witness to

an Execution, Podcast at 16:02-18 (recounting how

“[a]fter [the condemned man is] strapped down and

the needles are flowing you’ve got probably forty-five

seconds where you and he are together for the last

time,” and how “the conversations that took place

[during that time]” were “always something different”). Again, this went on for decades without security

incidents occurring.

Other jurisdictions likewise permit audible prayer

and other communication between the condemned

and a spiritual advisor during the execution. For

example, in September 2020, the Federal Bureau of

11

Prisons allowed Sister Barbara Battista to “recit[e]

the Divine Mercy Chaplet” during an execution. Mary

Milz, The nun of death row stands against the death

penalty while providing spiritual companionship to

the condemned, NBC WTHR 13 (Dec. 17, 2020).8

The condemned man “asked [her] to keep praying

it and to pray it out loud with him.” Id. She did,

and the condemned man died without incident. Id.

Alabama also permits a spiritual advisor to converse

and pray with the condemned inside the execution

chamber. See Jt. Mot. To Dismiss at 4 n.13, Smith v.

Dunn, No. 2:20-cv-01026-RAH, ECF No. 57 (M.D. Ala.

June 16, 2021) (Alabama allows a spiritual advisor to

“talk with [the condemned] prior to the execution”

and, “[a]fter the execution begins, [to] pray with [the

condemned]”).

These past practices demonstrate that TDCJ

could perform an efficient, safe execution without

prohibiting the condemned man’s spiritual advisor

from praying audibly. See Dunn, 141 S. Ct. at 725-26

(Kagan, J., concurring in denial of application to vacate

injunction).

II. LESS RESTRICTIVE MEANS EXIST FOR

TDCJ

TO

ACHIEVE

ITS

ALLEGED

SECURITY INTEREST IN ENSURING

AN EFFICIENT EXECUTION

TDCJ’s current execution protocol permits spirtual

advisors to accompany the condemned to the execution

chamber and stand by him until he is pronounced

dead. Allowing a spirtual advisor to (1) gently touch

the condemned man and (2) pray aloud during the

8 See https://www.wthr.com/article/news/local/nun-of-deathrow-sister-barbara-battistaterre-haute-federal-penitentiary/531c692ca5c-c82c-45d5-9e03-1929c90b9cf1.

12

execution adds little, if any, marginal risk. Managing

that hypothetical, marginal risk does not require

banning those historical practices. Instead, TDCJ

could incorporate any number of less restrictive

measures into its execution protocols. Such measures

would ensure the security and precision of the

execution by creating a controlled, predictable

environment while still allowing the spiritual advisor

to touch the condemned and pray out loud. To better

explain these alternatives, an overview of TDCJ’s

current execution protocol may assist the Court.

A. TDCJ’s Current Execution Protocol

TDCJ’s execution protocol addresses every moment

of the condemned’s final day. That day includes

special visitation hours, a final meal, a shower, and

a fresh change of clothes. See TDCJ’s Execution

Procedure at 9, Gutierrez v. Collier, No. 1:21-cv-00129,

ECF No. 1-2, Ex. 2 (S.D. Tex. Aug. 25, 2021) (“Execution Procedure”). At 6:00pm, security personnel escort

the condemned to the execution chamber. Id. at 10.

The photograph on the next page (which respondents

attached to their surreply in opposition, see No. 4:21cv-02609, ECF No. 21-1 (S.D. Tex. Aug. 31, 2021)) is of

that chamber.

13

14

Upon entering the chamber, the condemned is

placed on the gurney. See Execution Procedure at 10.

His head is placed where the pillow appears, and his

arms are extended on the narrow planks perpendicular to the gurney. The security personnel immediately

secure him to the gurney in this position using the

leather straps shown on the gurney: three for the

torso, two for the legs, and one for each of his arms,

thus fully immobilizing him.

Next, the medical team inserts the intravenous

(“IV”) drip. See id. The IV enters the execution

chamber through the small square hole in the wall

next to the window on the left side of the photograph.

The medical team inserts two IVs, one in each arm.

The IVs are connected; the single apparatus runs from

the small square hole on the left side of the room to

the condemned man’s left arm, and then underneath

the gurney to his right arm.

When the medical team has secured each IV, it

begins injecting a saline solution. See id. The Correctional Institutions Division (“CID”) Director, the

Warden, and the medical professional then confirm

that the saline solution is flowing properly. See id.

At that point, security personnel escort the spiritual

advisor into the room. See id.9 TDCJ’s execution

9 TDCJ’s execution procedure requires the spiritual advisor

to meet vetting, training, and other requirements before he or

she may attend an execution. First, “[t]he inmate’s requested

spiritual advisor must be included on the inmate’s visitation list

and have previously established an ongoing spiritual relationship with the inmate.” Execution Procedure at 3. Second, the

spiritual advisor must provide his “credentials to the Death Row

Unit Warden,” including a Minister Identification Card, or

license or ordination certifcate, which are meant to “verify[ ] the

individual’s official status as a spiritual advisor.” Id. at 3-4.

Third, the spiritual advisor must pass a TDCJ background check.

15

procedure does not specify where in the small room

the spiritual advisor may stand. But, in the experience of amici, the spiritual advisor typically stands on

the right side of the gurney near the lower-half of the

condemned man’s body.

Next, the witnesses enter the witness rooms, see id.,

which are located behind the bars depicted on the

right side of the photograph. There is a witness

room for victims and a separate witness room for the

condemned man’s witnesses.

When the witnesses are settled, the CID Director

“give[s] the order to commence with the execution.”

Id. at 11. The Warden then “allow[s] the inmate to

make a brief, last statement.” Id. After the final

statement, the Warden “instruct[s] the drug team to

induce, by syringe, substances necessary to cause

death”: “100 milliliters of solution containing 5 grams

of Pentobarbital.” Id. at 10, 11.

After an appropriate amount of time has passed, a

physician will enter the chamber and pronounce the

condemned man dead. Id. at 11. At that point, the

spiritual advisor “will be escorted from the execution

chamber, and the witnesses shall be escorted from the

witness room.” Id.

Id. at 4. Fourth, after the vetting procedures, the spiritual

advisor “must satisfactorily complete a two (2) hour, in-person

orientation with a staff member of the Rehabilitation Programs

Division.” Id. Finally, even after this vetting and training,

TDCJ retains a final security veto: “If the spiritual advisor

is determined to be a security risk, the Huntsville Unit Warden

. . . may deny the inmate’s request for the spiritual advisor to

be present inside the execution chamber during the inmate’s

scheduled execution.” Id. This all occurs before the day of

execution. As such, the spiritual advisor in the execution

chamber is necessarily a known figure whom TDCJ has vetted,

trained, and deemed not to be a security threat.

16

B. TDCJ Could Amend Its Protocol To Allow

For Physical Contact Between The Spiritual Advisor And The Condemned And

Audible Prayer Without Jeopardizing The

Execution Process

TDCJ already allows spirtual advisors to stand

in the immediate presence of the condemned, and,

because any threats posed by the spirtual advisor’s

touch and audible prayer readily can be mitigated by

simple amendments to TDCJ’s execution procedure,

it is clear that TDCJ’s ban on these practices is not the

least restrictive means available to achieve TDCJ’s

alleged security interest.

A policy is not the least restrictive means of achieving security goals when the policy is “substantially

underinclusive” with regard to conduct “pos[ing]

similar risks.” Holt, 574 U.S. at 367. Here, there

is no appreciable difference between (a) the presence

of a spiritual advisor in the execution chamber and

(b) the presence of a spiritual advisor in the execution

chamber who lays his hands on the condemned and

prays aloud during the execution. Because this Court

previously has struck down bans on the former, it also

should find unlawful bans on the latter.

The positioning of the spiritual advisor within the

chamber supports treating touching and praying as

minimally intrusive. Spiritual advisors who have

participated in executions in Texas have described

just how close they are to the condemned as the

execution takes place: “[w]ithin inches, a foot maybe.”

Dep. Tr. of Thomas Brouwer at 36:23-37:1, Murphy

v. Collier, No. 4:19-cv-01106, ECF No. 38-6 (S.D.

Tex. July 19, 2019); see also Resps. Br. in Opp. at 27

(acknowledging how, during an execution, spiritual

advisors stand in the condemned man’s “immediate

17

physical presence”). From a security perspective, the

difference between a spiritual advisor being a foot

(or less) away from the condemned, and a spiritual

advisor reaching out to gently touch the dying man,

is marginal.10 Because these practices “pose similar

risks,” and the former is permitted, the latter should

be permitted as well. Holt, 574 U.S. at 367 (inconsistent grooming policy); see also, e.g., Yellowbear v.

Lampert, 741 F.3d 48, 60 (10th Cir. 2014) (Gorsuch,

J.) (prison lacked a compelling interest in refusing

lock downs for religious needs when it used lock downs

for medical needs); Washington v. Klem, 497 F.3d 272,

285 (3d Cir. 2007) (prison had no compelling interest

in a 10-book limit when it allowed substantial

additional reading material of other types); Spratt v.

Rhode Island Dep’t of Corr., 482 F.3d 33, 40, 42

(1st Cir. 2007) (prison lacked a compelling interest in

stopping inmates from preaching on grounds that

“leaders in prison” are dangerous, where inmates

could “become leaders under other circumstances”).

Similarly, TDCJ allows for every person in the

execution chamber – except the spiritual advisor –

an opportunity to speak and expressly allows the

condemned to pray aloud. To ensure an orderly

process, the execution protocol makes clear precisely

when each individual may speak, and for what

10 In fact, far from posing additional risk, amici maintain that

permitting a spiritual advisor’s touch and prayer could calm the

condemned man and the death chamber as a whole, resulting in

a more peaceful and precise execution. Cf. Expert Rep. of Steve

J. Martin at 5-6, Gutierrez v. Saenz, No. 1:19-cv-00185, ECF No.

109, at A835-36 (S.D. Tex. Sept. 22, 2020) (“The presence of

a spiritual advisor in the physical presence of the condemned

could even enhance the level of safety and security in the

execution chamber by creating a calming/comforting effect on the

condemned prisoner.”).

18

purpose. See Execution Procedure at 11. Given this

reality, it is not at all clear why the spiritual advisor

would be prohibited from speaking (or praying) once

all others have finished.

Should the Court find that minor physical contact

may present a security threat (even though the

spiritual advisor is already standing “inches, maybe a

foot,” away from the condemned) or that a simple

prayer may pose a threat (even though others

are permitted to speak and pray in the chamber),

then amici submit that TDCJ can mitigate these

hypothetical threats through targeted amendments to

its execution protocol.

For example, TDCJ could codify its past practice of

permitting spiritual advisors to make contact with the

condemned by specifying in the protocol where on the

condemned man’s body the spiritual advisor may

touch.11 Crafting the execution protocol to specify

where the spiritual advisor may make contact would

avoid any unpredictable disruptions TDCJ may fear.

Likewise, TDCJ could specify in the protocol when the

spiritual advisor may initiate contact.

In addition, TDCJ could require that security

personnel attend the execution. While TDCJ’s current

11 Historically, Texas permitted the spiritual advisor to both

hold the hand of the condemned man, see Chaplain Discusses

‘Death House’ Ministry, NPR, Fresh Air Podcast at 7:39-8:00, and

touch the condemned man’s leg or ankle, see Michael Graczyk,

Death Row’s last human touch, Seattle Times (Oct. 6, 2000);

Witness to an Execution, Podcast at 16:02-18; In Texas, Frequency

of Executions Makes Grisly Task Seem Routine, Chi. Trib. (May

25, 1997); Dep. Tr. of Wayne Moss at 18:25-19:16, Murphy v.

Collier, No. 4:19-cv-01106, ECF No. 38-8 (S.D. Tex. July 19,

2019). Because no disruptions resulted from those incidents

of physical contact, it would make sense for the restriction to

include at least those bodily areas.

19

execution protocol does not require security personnel

within the chamber, TDCJ’s former CID Director,

Lorie Davis, recently testified that security personnel

are present in the witness rooms. Dep. Tr. of Lorie

Davis at 47:11-23, Murphy v. Collier, No. 4:19-cv01106, ECF No. 38-7 (S.D. Tex. July 19, 2019). Director Davis deemed this security measure – meaning,

the presence of security personnel in the witness

rooms – a success, explaining that a spiritual advisor

seated in a witness room never has caused a disturbance during an execution. See id. at 46:22-47:23.

TDCJ could apply this proven measure in the execution chamber itself, thereby mitigating any chance of

a disturbance caused by the spiritual advisor. Indeed,

under the current execution procedure, security

personnel must escort spiritual advisors to and from

the execution chamber. As such, requiring one to

remain in the chamber to maintain physical security

would be a readily available solution.

TDCJ likewise could amend its execution protocol

to allow for a spiritual advisor’s audible prayer without risking disruption to the execution. Currently,

TDCJ’s execution protocols make clear who may

speak and when, which ensures the precision and

predictability of the execution. TDCJ simply could

amend the protocol to permit the spiritual advisor to

pray at a designated point in the execution, likely

after the Warden gives the final order to perform the

execution. Specific guidance as to when the spiritual

advisor may speak would ensure that the spiritual

advisor would not speak over any vital instructions

or the condemned man’s last statement. Again, this

solution – written into the execution protocol itself

following reasoned deliberation – would be consistent

with TDCJ’s interest in keeping the execution process

predictable and nondisruptive.

20

Likewise, TDCJ could consider placing reasonable

limitations on the volume of the spiritual advisor’s

prayer. That way, if a disruption occurs, all present

would be aware and would be able to hear further

instructions. Similarly, TDCJ could require that

the spiritual advisor cease speaking in the (unlikely)

event something does go awry, to allow for the

Warden, the CID Director, or the security personnel

to take control of the situation.

Ultimately, amici ’s proposed less restrictive means

are just a subset of the many ways in which TDCJ

could mitigate the speculative security threat posed

by practices that, for decades, resulted in no security

incidents at all. The availability of these less restrictive means shows that TDCJ’s current policy is not

the least restrictive means available for achieving

a secure execution. TDCJ’s blanket ban therefore

violates RLUIPA.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,

September 27, 2021

DAVID C. FREDERICK

Counsel of Record

CATHERINE M. REDLINGSHAFER

MATTHEW J. WILKINS

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dfrederick@kellogghansen.com)