By Jolie McCullough and Elizabeth Byrne, The Texas Tribune, April 3, 2019
The state of Texas has banned all prison chaplains from its execution chamber, days after the U.S. Supreme Court ruled that the state could not execute an inmate without allowing a Buddhist chaplain into the death chamber with him.
The high court last week halted the execution of Patrick Murphy, a member of the infamous “Texas Seven,” after Murphy claimed that the state was violating his religious rights by not allowing him to have a Buddhist chaplain in the room with him at the time of his scheduled death. The state only allows prison employees in the death chamber, and only Christian and Muslim clerics are employed with the state. During executions, a chaplain will often stand at the feet of the prisoner and rest a hand on his leg mouthing silent prayers.
The court stopped Murphy’s execution hours after it was scheduled to begin, ruling Texas could not execute him until his late appeal was considered unless the state provided a Buddhist spiritual adviser in the execution chamber. The ruling came less than two months after the same court decided against stopping the execution of a black prisoner in Alabama who requested a Muslim imam at his execution. Justice Brett Kavanaugh issued an opinion declaring that the exclusion of a Buddhist adviser was religious discrimination and proposed two alternatives for the Texas prison system: Don’t allow any chaplains into the execution chambers, or allow chaplains of all religions.
Texas has chosen the former option. New execution procedures signed Tuesday say that chaplains and ministers may “observe the execution only from the witness rooms.” Currently, friends and family of the murder victims and prisoners, as well as media, are allowed to watch executions through a glass window in small rooms adjacent to the death chamber.
A spokesman for the Texas Department of Criminal Justice said the policy change is effective immediately.
“TDCJ Chaplain(s) will continue to be available to an offender until they are transferred to the execution chamber. The chaplain will also be present in the viewing room if requested,” said the spokesman, Jeremy Desel.
Under the policy, prisoners will still be able to meet with a TDCJ chaplain or a spiritual adviser “who has the appropriate credentials” on the day of execution. But religious rights advocates claim the policy change doesn’t address the ruling from the court, only Kavanaugh’s opinion. Luke Goodrich, a senior counsel with The Becket Fund for Religious Liberty, a law firm that advocates for prisoners’ free exercise of religion, said Murphy’s situation goes beyond discrimination among different religions and infringes on his religious freedom by not allowing a chaplain of his faith in the death chamber with him.
“This policy change is Texas trying to dig in its heels, but it’s in a pretty weak position legally,” Goodrich said.
He added that the policy change still wouldn’t allow Murphy’s execution before appeals are considered by the U.S. Supreme Court because the order claims he can only be executed during the ongoing appeals if the state provides a Buddhist adviser.
Murphy, 57, is one of seven in a group of escaped prisoners who committed multiple robberies and killed a police officer in 2000 during more than a month on the run. During a robbery on Christmas Eve, Murphy served as the lookout, and he said he left the scene on the instruction of the group’s leader before any shots were fired at 31-year-old Officer Aubrey Hawkins. He used a two-way radio to warn the others to flee the scene when he heard that police were on their way.
Murphy is criminally culpable for the murder under Texas’ law of parties, under which accomplices and triggermen are treated alike. Six of the seven men were sentenced to death (four have been executed), and one killed himself after police surrounded the group weeks after the murder.
About a month before he was scheduled to die, Murphy’s lawyers requested that the Texas Department of Criminal Justice allow his Buddhist spiritual adviser into the execution chamber with him, but TDCJ declined, claiming a chaplain needed to be employed by the department. When a follow-up request was sent for any Buddhist adviser to be allowed into the room, the department didn’t respond. In the days before Murphy’s execution, the lawyers took the issue to the courts, claiming the policy violated his rights.
The high court’s decision to block the Texas execution came just weeks after it decided differently in a similar death row appeal out of Alabama. Domineque Ray, the Alabama inmate, appealed to stop his execution after he was told he could not have a Muslim spiritual adviser in the chamber with him. The high court rejected his appeal, citing the late timing of his filing, and he was executed in February.
In Kavanaugh’s March opinion in the Texas case, he suggested the timing of Murphy’s appeal had been acceptable.
“As this Court has repeatedly held, governmental discrimination against religion — in particular, discrimination against religious persons, religious organizations, and religious speech — violates the Constitution,” Kavanaugh wrote in the Texas case.
Emma Platoff contributed to this report.
Editor’s note: This article originally appeared in The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans—and engages with them—about public policy, politics, government and statewide issues.