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 HENRY RAMIREZ,

v.

Petitioner,

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 AMICI CURIAE ARIZONA,

ALABAMA, ARKANSAS, IDAHO, INDIANA,

LOUISIANA, MONTANA, SOUTH DAKOTA,

AND UTAH IN SUPPORT OF RESPONDENTS

MARK BRNOVICH

Attorney General

of Arizona

BRUNN W. ROYSDEN III

Solicitor General

LACEY STOVER GARD

Deputy Solicitor General

JOSEPH A. KANEFIELD

Chief of Capital Litigation

Chief Deputy and Chief GINGER JARVIS

Unit Chief Counsel

of Staff

Counsel of Record

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542-4686

CLDocket@azag.gov

Counsel for Amici Curiae

(Additional Counsel listed at end of brief)

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................... ii

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

SUMMARY OF ARGUMENT .....................................1

ARGUMENT ...............................................................2

I. This Court should not use RLUIPA to

micromanage state executions. ........................2

A. The States’ compelling interest in

carrying out safe executions weighs

heavily in RLUIPA’s balancing test. .........3

B. The statutory questions of sincerity

and exhaustion are intended to guard

against inevitable prisoner litigation

gamesmanship............................................4

C. Abuse of RLUIPA through lastminute challenges to execution

protocols frustrates federalism as

well as federal and state victims’

rights......................................................... 10

CONCLUSION .......................................................... 13

ii

TABLE OF AUTHORITIES

CASES

Branch v. Smith,

538 U.S. 254 (2003) ............................................... 11

Bucklew v. Precythe,

139 S. Ct. 1112 (2019) ..................................... 11, 12

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ............................................. 2, 7

Calderon v. Thompson,

523 U.S. 538 (1998) ............................................... 10

City of Boerne v. Flores,

521 U.S. 507 (1997) .................................................2

Cutter v. Wilkinson,

544 U.S. 709 (2005) ....................................... passim

Davila v. Davis,

137 S. Ct. 2058 (2017) ........................................... 10

Dunn v. Smith,

141 S. Ct. 725 (2021) ......................................... 3, 11

Employment Div. Dept. of Human Resources of Or. v.

Smith,

494 U.S. 872 (1990) .................................................2

Engle v. Isaac,

456 U.S. 107 (1982) ............................................... 10

Gillette v. United States,

401 U.S. 437 (1971) .................................................5

Gomez v. United States Dist. Court for Northern Dist.

of California,

503 U.S. 653 (1992) .................................................9

Harrington v. Richter,

562 U.S. 86 (2011) ................................................. 10

Holt v. Hobbs,

574 U.S. 352 (2015) ............................................. 2, 3

iii

Murphy v. Collier,

139 S. Ct. 1475 (2019) ..................................... 3, 4, 9

United States v. Monzel,

641 F.3d 528 (D.C. Cir. 2011) ............................... 12

United States v. Seeger,

380 U.S. 163 (1965) .................................................5

United States v. Turner,

367 F. Supp. 2d 319 (E.D.N.Y. 2005) .................... 12

Watt v. Alaska,

451 U.S. 259 (1981) ............................................... 11

Woodford v. Ngo,

548 U.S. 81 (2006) ............................................... 5, 6

STATUTES

18 U.S.C. § 3771(a)(7) ............................................... 12

18 U.S.C. § 3771(b)(2)(A) .......................................... 12

42 U.S.C. § 2000bb–1(a), (b)........................................3

42 U.S.C. § 2000cc–1(b) ...............................................2

42 U.S.C. § 2000cc–5(7)(A) ..........................................4

OTHER AUTHORITIES

146 CONG. REC. 16698 ..............................................4

150 CONG. REC. 7301 .............................................. 12

ADCRR Order Manual, Chapter 800, Order 802 (2.0–

4.0)............................................................................6

1

INTEREST OF AMICI CURIAE

Amici curiae are the States of Arizona, Alabama,

Arkansas, Idaho, Indiana, Louisiana, Montana,

South Dakota, and Utah, 1 and have a substantial

interest in the safe and timely conduct of state

executions and other prison policies. The potential

burdens federal courts may impose in the form of

religious accommodations under the Religious Land

Use and Institutionalized Persons Act of 2000

(RLUIPA) impact the states’ compelling interests in

a safe and effective mechanism to carry out lawfully

imposed lethal-injection executions.

SUMMARY OF ARGUMENT

The Fifth Circuit appropriately denied Ramirez’s

motion to stay his execution based on his desire for

his chosen spiritual advisor to have physical contact

with him and audibly pray during his execution. The

safety and security of state execution protocols

should

not

be

subject

to

federal

court

micromanagement, through use of RLUIPA or

otherwise, given the always compelling state interest

in the safety and security of prison execution

protocols. Moreover, any attempt at such federal

court micromanagement under RLUIPA will

inevitably lead to further frustration of exhaustion

requirements and an unmanageable profusion of

prisoner accommodation requests during executions

and other non-capital prison circumstances.

Additionally, such federal court micromanagement

compromises bedrock principles of federalism,

1 No counsel for any party authored this brief, in whole or in

part.

No person or entity other than amici contributed

monetarily to its preparation or submission. The parties

consent to the filing of this brief.

2

comity, and finality, as well as federal and state

victims’ rights.

ARGUMENT

I. This Court should not use RLUIPA to

micromanage state executions.

Following this Court’s decision in Employment

Div. Dept. of Human Resources of Or. v. Smith, 494

U.S. 872 (1990), Congress sought to “provide very

broad protection for religious liberty” by enacting

RLUIPA and “its sister statute, the Religious

Freedom Restoration Act of 1993 (RFRA).” Holt v.

Hobbs, 574 U.S. 352, 356 (2015) (quoting Burwell v.

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

Congress designed RFRA “to provide greater

protection for religious exercise than is available

under the First Amendment.” Id. at 357. Congress

enacted RFRA, making it applicable to the States

and their subdivisions by citing Section 5 of the

Fourteenth Amendment; however, this Court held

that Congress exceeded its authority in so doing. Id.;

City of Boerne v. Flores, 521 U.S. 507, 532–36 (1997).

In the wake of City of Boerne, Congress enacted

RLUIPA, this time applying its provisions to the

States and their subdivisions by employing its power

under the Spending and Commerce Clauses. Holt,

574 U.S. at 357; 42 U.S.C. § 2000cc–1(b). Section 3

of RLUIPA governs religious exercise

by

institutionalized persons and provides that “[n]o

government shall impose a substantial burden on the

religious exercise of a person residing in or confined

to an institution … even if the burden results from a

rule of general applicability, unless the government

demonstrates that imposition of the burden on that

person—(1) is in furtherance of a compelling

3

governmental interest; and (2) is the least restrictive

means of furthering that compelling governmental

interest.” Holt, 574 U.S. at 357–58; § 2000bb–1(a),

(b).

A.

The States’ compelling interest in

carrying out safe executions weighs

heavily in RLUIPA’s balancing test.

Petitioner John Ramirez, convicted, sentenced to

death, and facing imminent execution for the firstdegree multiple-stabbing murder of Pablo Castro,

seeks to have his chosen spiritual advisor make

physical contact and pray aloud with him during his

execution by lethal injection.

He alleges that

RLUIPA requires Texas to accommodate this

request.

Members of this Court have repeatedly

acknowledged that “prison security is, of course, a

compelling state interest,” Dunn v. Smith, 141 S. Ct.

725, 725–26 (2021) (Kagan, J., concurring in denial

of application to vacate injunction), as is the “safety,

security, and solemnity of the execution room,” id. at

726 (Kavanaugh, J., dissenting from denial of

application to vacate injunction). See also Murphy v.

Collier, 139 S. Ct. 1475, 1475–76 (2019) (“States …

have a strong interest in tightly controlling access to

an execution room in order to ensure that the

execution occurs without any complications,

distractions, or disruptions.”). RLUIPA must be

applied “with particular sensitivity to security

concerns” because “‘context matters’” when assessing

a compelling state interest. Cutter v. Wilkinson, 544

U.S. 709, 722–23 (2005) “Things can go wrong and

sometimes do go wrong in executions, as they can go

wrong and sometimes do go wrong in medical

4

procedures.”

Murphy, 139 S. Ct. at 1475

(Kavanaugh, J., concurring in grant of application for

stay). The States thus have a recognized compelling

interest in adhering to strict protocols in the

execution chamber.

In fact, when applying RLUIPA, Congress

expected federal courts to accord “due deference to

the experience and expertise of prison and jail

administrators in establishing necessary regulations

and procedures to maintain good order, security and

discipline, consistent with consideration of costs and

limited resources.” Cutter, 544 U.S. at 723 (quoting

46 CONG. REC. 16698, 16699). “It bears repetition

… that prison security is a compelling state interest,

and that deference is due to institutional officials’

expertise in this area.” Id. at 725 n.13.

B.

The statutory questions of sincerity and

exhaustion are intended to guard against

inevitable

prisoner

litigation

gamesmanship.

In general, courts should not unnecessarily

inquire into the sincerity of religious beliefs when

construing religious liberty laws. However, this

Court has acknowledged that, while centrality of an

asserted religious belief is beyond a court’s inquiry in

the analysis of a RLUIPA claim, 2 “prison officials

may appropriately question whether a prisoner’s

religiosity, asserted as the basis for a requested

accommodation, is authentic.” Cutter, 544 U.S. at

725 n.13 (noting that RLUIPA “does not preclude

inquiry into the sincerity of a prisoner’s professed

2 RLUIPA defines “religious exercise” to include “any exercise of

religion, whether or not compelled by, or central to, a system of

religious belief.” See § 2000cc–5(7)(A).

5

religiosity”), citing Gillette v. United States, 401 U.S.

437, 457 (1971) (“The ‘truth’ of a belief is not open to

question; rather, the question is whether the

objector’s beliefs are ‘truly held.’” (quoting United

States v. Seeger, 380 U.S. 163, 185 (1965)) (cleaned

up)).

One safeguard to manipulative prisoner

religiosity claims is the Prison Litigation Reform Act

of 1995 (PLRA), which this Court hoped would

provide adequate deterrence: “We see no reason to

anticipate that abusive prisoner litigation will

overburden the operations of state and local

institutions” because the PLRA is “designed to

inhibit frivolous filings.” Cutter, 544 U.S. at 726.

This Court has observed that “[s]hould inmate

requests for religious accommodations become

excessive, impose unjustified burdens on other

institutionalized persons, or jeopardize the effective

functioning of an institution, the facility would be

free to resist the imposition.” Id.

The PLRA exhaustion requirement is mandatory

and serves as an important check on a potentially

endless cycle of inmate RLUIPA accommodation

requests. See Woodford v. Ngo, 548 U.S. 81, 85, 87–

88 (2006) (PLRA requires “exhaustion of available

administrative remedies … for any suit challenging

prison conditions”). Among other purposes—such as

efficiency and permitting an agency the opportunity

to address its own policies and potential mistakes—

exhaustion “requirements are designed to deal with

parties who do not want to exhaust.” Id. at 89–90.

The Court has recognized that inmates, in

particular, have an incentive to “avoid creating an

administrative record with someone that he or she

6

views as a hostile factfinder, filing a lawsuit

primarily as a method of making some corrections

official’s life difficult, or perhaps even speculating

that a suit will mean a welcome—if temporary—

respite from his or her cell.” Id. at 90 n.1. It is not a

stretch to include delaying an execution date in that

list.

This is why deference to (and exhaustion of)

internal state prison grievance procedures is

essential both to serve the preservation of inmates’

free exercise of sincerely held religious beliefs and to

form a backstop against an endless parade of lastminute RLUIPA execution challenges. Similar to

Texas, Arizona’s Department of Corrections,

Rehabilitation and Reentry (ADCRR) provides an

internal grievance process with appropriate time

limits and a designation of what constitutes

exhaustion of those remedies within the Department.

See generally, ADCRR Order Manual, Chapter 800,

Order 802 (2.0–4.0) (detailing informal, formal, and

appeals processes for non-medical grievances).

Congress’ inclusion of an exhaustion requirement in

PLRA acknowledges that internal prison remedies

protect both the state and the prisoner by ensuring

that prisoners timely communicate sincerely held

religious accommodation requests so that the state is

not only clear about what is requested, but is

permitted adequate time to safely accommodate

them (if possible) in light of the compelling interests

involved—especially surrounding an execution. In

other words, the exhaustion requirement ultimately

protects sincerely held religious beliefs because those

that are sincerely held are more likely to have been

clearly and timely requested for accommodation.

7

Thus, whatever test the Court adopts must be

cognizant of the gamesmanship that is present in

death penalty litigation, especially such litigation on

the eve of executions.

Here, where Ramirez

previously said he was not seeking physical touch,

but after he was accommodated by Texas, changed

his position to seeking physical touch, the objective

circumstantial evidence raises serious questions

about the sincerity of the asserted religious belief.

See Cutter, 544 U.S. at n.13. The presence of serial

litigation by a prisoner should be a factor in this

unique RLUIPA context. Also, this Court must

adopt a workable test that ensures the reason for the

accommodation is honest religious belief and not

some other purpose such as dilatory conduct. See

Hobby Lobby, 573 U.S. at 725 (not for federal courts

to decide whether religious beliefs are mistaken or

insubstantial, but only the reflection of an honest

conviction) (cleaned up).

Surely, the timing,

frequency, and context of religious accommodation

requests by prisoners in the lead-up to an execution

are factors in that assessment.

Ramirez requests physical touch and audible

prayer. Even assuming that both requests have met

mandatory exhaustion requirements and that

accommodating this religious belief does not

compromise Texas’s compelling interest in the safety

of lethal injection executions as reflected in its

protocols, the Court should be wary of the slippery

slope. The next request from a different religiously

affiliated capital defendant—or even from Ramirez

himself—may be for an embrace during execution, or

for music to be played, or for a family member to be

present in the chamber, or to wear certain religious

8

clothing, or to deploy ceremonial incense, or to face

in a specific direction.

Further, what end can be imagined to proving a

least restrictive means? Must state correctional

departments reconfigure, enlarge, or otherwise

rebuild execution chambers to accommodate physical

touch and audible prayer (and the deluge of sincerely

held religious beliefs to follow) while protecting

prison personnel, ensuring safe and still effective

execution procedures, and otherwise timely enforcing

lawful convictions and sentences? The potential for

abuse is rife. And what of alternative execution

methods? Ramirez’s request for physical contact

could conceivably be permissible under RLUIPA for

some methods, but not others. Would this then

implicate a State’s choice of execution method under

a least restrictive means analysis? A state that

executes by firing squad must accommodate this

sincerely held religious belief by employing lethal

injection—only then to face the inevitable lawsuits

regarding lethal injection drugs? 3

This Court has observed that “[s]hould inmate

requests for religious accommodations become

excessive, impose unjustified burdens on other

institutionalized persons, or jeopardize the effective

functioning of an institution, the facility would be

free to resist the imposition. In that event,

3 Of course, manipulation of RLUIPA is by no means limited to

capital defendants.

See Cutter, 544 U.S. at 723 n.11

(acknowledging potential of irreligious prisoners challenging

confiscation of white supremacist literature as a violation of

RLUIPA and whether excluding racist literature was least

restrictive means of furthering compelling state interest in

preventing prison violence).

9

adjudication in as-applied challenges would be in

order.” Cutter, 544 U.S. at 726.

The problem is that even frivolous last-minute

adjudication of “as-applied challenges” in capital

execution protocols results in delay. And delay is the

goal of capital defendants. See Murphy, 139 S. Ct. at

1477 (Kavanaugh, J., commenting on grant of

application to stay) (“[C]ounsel for inmates facing

execution would be well advised to raise any

potentially meritorious claims in a timely manner, as

this Court has repeatedly emphasized.”); see also

Gomez v. United States Dist. Court for Northern Dist.

of California, 503 U.S. 653, 654 (1992) (per curiam)

(no good reason for capital defendant’s failure to

bring equitable claim more than a decade previously

was “abusive delay … compounded by last-minute

attempts to manipulate the judicial process.”).

In his dissent from this Court’s grant of a stay of

execution in Murphy, Justice Alito explained why

unreasonable delay in bringing claims invokes a

“strong equitable presumption” against granting the

relief of a stay: (1) it honors States’ strong interest in

the timely enforcement of valid judgments of their

courts and sufficient time to consider legitimate

RLUIPA claims for acceptable accommodation; (2)

last minute stay requests may impair valid interests

of federal courts without adequate time to consider

claims while disrupting other important work; (3)

interests of applicants with potentially meritorious

claims may suffer from hasty decision making; and

(4) cancellation of scheduled executions may inflict

additional emotional suffering on a murder victim’s

family, friends, and affected community. Murphy,

139 S. Ct. at 1480–81. Failure to enforce exhaustion

requirements, which permit prison officials to make

10

the first judgment about whether to provide an

accommodation, frustrates RLUIPA and invites

abuse.

C.

Abuse of RLUIPA through last-minute

challenges

to

execution

protocols

frustrates federalism as well as federal

and state victims’ rights.

Both this Court and Congress have recognized

that States have a substantial interest in the ability

to define criminal conduct, proscribe punishments for

those crimes, and ultimately carry out those

punishments not just in a safe and orderly manner,

but in a timely one as well. Thus, federal review of

state court convictions and sentences is limited to

federal

constitutional

guarantees,

generally

conducted through the federal habeas process,

governed by the Anti-Terrorism and Effective Death

Penalty Act of 1996 (AEDPA).

Chief among Congress’s goals in enacting AEDPA

was the protection and preservation of federalism,

comity, and the finality of state court convictions by

limiting federal court control and power of review

over them. See Davila v. Davis, 137 S. Ct. 2058,

2070 (2017) (federal habeas review necessarily

causes a harm to federalism); Harrington v. Richter,

562 U.S. 86, 103 (2011) (federal habeas review

intrudes on state sovereignty to a degree matched by

few exercises of federal judicial authority, disturbs

state interest of repose in concluded litigation, and

denies society the right to punish offenders);

Calderon v. Thompson, 523 U.S. 538, 555–56 (1998)

(federal habeas review frustrates the sovereign

power of states to punish offenders); Engle v. Isaac,

456 U.S. 107, 127 (1982) (federal habeas review

11

degrades prominence of the state criminal trial). In

so doing, AEDPA helps promote the “important

interest” that “[b]oth the State and the victims of

crime” have “in the timely enforcement of a

sentence.” Bucklew v. Precythe, 139 S. Ct. 1112, 1133

(2019).

The Court thus should keep these interests in

mind when applying RLUIPA. Through AEDPA,

Congress has already recognized States’ interests in

carrying out lawfully imposed death sentences in a

timely fashion. The law prevents the exploitation of

federal courts to wreak harm on federalism, comity,

and finality. These interests will be undermined if

RLUIPA is turned into a tool for micromanaging

state execution protocols and delaying the timely

enforcement of lawful sentences. Cf., Branch v.

Smith, 538 U.S. 254, 281 (2003) (“And it is, of course,

the

most

rudimentary

rule

of

statutory

construction . . . that courts do not interpret statutes

in isolation, but in the context of the corpus juris of

which they are a part, including later-enacted

statutes.”); Watt v. Alaska, 451 U.S. 259, 267 (1981)

(“We must read the statutes to give effect to each if

we can do so while preserving their sense and

purpose.”). Already, “months or years of litigation

delays” are expected from current RLUIPA claims.

Smith, 141 S. Ct. at 726–27 (Kavanaugh, J.,

dissenting from the denial of application to vacate

injunction). Through this case, the Court should

make clear that RLUIPA does not require States to

accommodate future requests that would unduly

delay an execution and thus thwart the States’

interest in timely executions.

After all, the interest in timely justice is shared

not just by the States, but by the victims of crimes.

12

Congress recognized this important interest in the

Crime Victims’ Rights Act (CVRA). See 18 U.S.C.

§ 3771(a)(7) (includes the right to “proceedings free

from unreasonable delay.”) The federal victims’

rights include protecting state crime victims during

federal habeas review, specifically guaranteeing this

freedom from unreasonable delay. See 18 U.S.C.

§ 3771(b)(2)(A). This guarantee protects “victims’

interest in fairness, respect, and dignity.” United

States v. Turner, 367 F. Supp. 2d 319, 335 (E.D.N.Y.

2005). And the CVRA exists alongside numerous

other victims’ rights laws, such as those granted by

the States. See United States v. Monzel, 641 F.3d

528, 543 (D.C. Cir. 2011) (“‘It is not the intent of [the

CVRA] to limit any laws in favor of crime victims

that may currently exist, whether these laws are

statutory, regulatory, or found in case law.”’)

(quoting 150 CONG. REC. 7301 (statement of Sen.

Jon Kyl)); id. (“‘[I]t is not our intent to restrict

victims’ rights or accommodations found in other

laws.’”) (quoting 150 CONG. REC. 7301 (statement

on Sen. Diane Feinstein)). As with concerns of

federalism, comity, and finality, this Court should

not permit RLUIPA to eclipse important victims’

rights simply because the federal review here is not

technically part of a habeas proceeding. Because it

concerns a state execution procedure, it is closely

akin to habeas proceedings.

Accordingly, when

weighing a RLUIPA claim in this case and others,

this Court should remember that “[b]oth the State

and the victims of crime have an important interest

in the timely enforcement of a sentence.” Bucklew,

139 S. Ct. at 1133.

13

CONCLUSION

This Court should affirm the Fifth Circuit’s denial

of a stay of Ramirez’s execution.

October 15, 2021

Respectfully submitted,

MARK BRNOVICH

Attorney General

BRUNN W. ROYSDEN III

Solicitor General

LACEY STOVER GARD

Deputy Solicitor General/

Chief of Capital Litigation

GINGER JARVIS

Unit Chief Counsel

Counsel of Record

JOSEPH A. KANEFIELD

Chief Deputy and

Chief of Staff

OFFICE OF THE ARIZONA

ATTORNEY GENERAL

2005 N. Central Ave.

Phoenix, AZ 85004

(602) 542-4686

CLDocket@azag.gov

Counsel for Amici Curiae

(Additional Counsel listed below)

14

STEVE MARSHALL

Attorney General of Alabama

LESLIE RUTLEDGE

Attorney General of Arkansas

LAWRENCE G. WASDEN

Attorney General of Idaho

THEODORE E. ROKITA

Attorney General of Indiana

JEFF LANDRY

Attorney General of Louisiana

AUSTIN KNUDSEN

Attorney General of Montana

JASON R. RAVNSBORG

Attorney General of South Dakota

SEAN D. REYES

Attorney General of Utah