‘Why Can’t I Hold His Hand?’ The Supreme Court Will Decide What Comforts a Pastor Can Offer During an Execution

Dana Moore loves to be on the roads by 3:00 am. He estimates that it takes five hours to travel from Corpus Christi, Texas to Livingston Texas. He watches dawn slowly break, and stops at the same Buc-ee’s He stops at a convenience store half way through his trip to get coffee and fuel. By 8:30 he hopes to have reached the Allan B. Polunsky Unit, a prison in Livingston, where he starts his day: ministering to men on Texas’ death row.

“I’ve been asked, ‘Why this ministry?’” he says. “In the Bible, Jesus equates visiting those in prison with visiting him… I felt the ministry placed in front of me was a call from God. And so I say, ‘yes I will do that.’ Who can say no to God?”
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John Ramirez was a 37 year-old death row prisoner. Moore, who is a Southern Baptist pastor, became his spiritual adviser in 2017. Moore meets Ramirez about once per month. They sit down and chat through plexiglass for approximately two hours.

Ramirez was sent to prison Death In 2008, Pablo Castro, a 46-year old Corpus Christi convenience-store clerk was murdered. Moore and Ramirez remained silent for many years about Ramirez’s imminent execution.

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However, over the summer their conversation turned To death. Ramirez was to be executed on Sept. 8. Although prison officials stated that Moore could stand in the execution chamber as Ramirez died, they said that he wouldn’t be allowed to touch Ramirez. Moore was asked by his attorney to be permitted to stand in the execution chamber on Aug. 10. Nine days later, the state denied Moore’s request and stated that Moore wouldn’t be permitted to pray in public.

“That didn’t make sense to us,” Moore tells TIME. “The job of a minister is not to stand still and be quiet. Prayer is vital. The power of touch is very real. It’s encouraging. It is a sign of peace. It’s significant… Why can’t I hold his hand?”

22 August Ramirez’s lawyer filed A modified emergencyPetition He was executedMoore be stopped It isAllowed to touch, audibly and verbally pray for He. Request setThe legal dispute has reached the Supreme Court. They will be hearing oral arguments Nov. 9 in this case. The district court and circuit courts denied his request, the high court announced on Sept. 8 that it would stay his execution—scheduled for that very night—until it could more fully consider it.

Ramirez’s attorney Arguments that the “vocalizati of prayer” and the “laying on of hands” are significant aspects of the Baptist faith tradition and that, by rejecting Ramirez’s request, TDCJ violated both the First Amendment’s free exercise clause and the Religious Land Use and Institutionalized Persons Act (RLUIPA), which prohibits the government from imposing a “substantial burden” on religious exercise.

TDCJ Responses that Ramirez’s request violates security protocol and was raised too late, and has suggested it was a tactic to delay his execution. (When asked for comment, the Texas Department of Criminal Justice responded that it “does not comment on pending litigation.”)

Outside the Allan B. Polunsky Unit prison, where death row inmate John Henry Ramirez is incarcerated, in Livingston, Texas, Aug. 25, 2021. (Matthew Busch/The New York Times)
Matthew Busch—The New York Times/ReduxLivingston: Outside the Allan B. Polunsky Unit prison

This is the case Ramirez v. CollierThe Supreme Court is hearing the question “What Role Does the Supreme Court Play?” for the first time. Clergy can play in executions on its merits docket—meaning it is the first time the high court will issue a full opinion on the issue. According to legal experts, the decision could be a significant step in ensuring that justice is done. MoreTransparency for death penalty state on how to respond to such requests, and an end to years-long litigation in Texas and Alabama about what religious rights prisoners receive as they go to execution.

The ruling could potentially impact prisoners’ religious-accommodation claims more generally, adds Joshua C. McDaniel, the director of Harvard Law School’s Religious Freedom Clinic, which collaborated on a brief in support of Ramirez. NNumerous organizations span the entire ideological spectrum. American Civil Liberties UnionTo the U.S Conference of Catholic Bishops, have also filed briefs urging the court to grant Ramirez’s request.

“On one level there’s a tremendous amount of support for expansive protections for religious practices, and then you meet, head on, the state’s need for security in its prisons,” says Ramirez’s lawyer Seth Kretzer. “Those TwoThey are quite opposite. So we are where we are in front of the Supreme Court.”

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SCOTUS has waffled on the issue over the past few years in a series of cases on its “shadow docket” a term that refers to expedited decisions outside of the court’s formal proceedings that skip many of the traditional steps, including oral arguments. In other words, while it has issued emergency rulings—and periodic concurrences—on these questions, Although the court gave limited information about its thoughts,

The first of these “shadow docket” cases came Feb. 2019, when the high court voted 5-4 to allow the execution of a Muslim man in Alabama whose request to have his imam in the execution chamber was denied, even though the policy at the time allowed Christian chaplains into the room. Then, less than two months later, the court agreed to halt the execution of a Buddhist prisoner in Texas who sued TDCJ for preventing his priest from entering the chamber—despite allowing inChaplains of Christian faith and Muslims paid by the state

Justice Brett Kavanaugh is who had voted in favor of allowing the execution in Alabama to move forward. ConsentExplaining his reasons for stopping Execution in Texas citing “several significant differences” between the cases, Including when the Texas prisoner made his claim. While a state may have understandable reasons for limiting who can go in the execution chamber, Kavanaugh wrote, it can’t allow certain denominations in and not others.

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Texas soon changed its policy and banned clergy from ever entering the death room. Catholic prisoner challenged this policy All the way to June 2020, at the highest courtHis execution was stopped by the Supreme Court the day after. A similar ground was used by the court to stop the execution of another Alabama man in February 2021. Alabama gave in and executed the man with the pastor present on October 22.

In light of the court’s most recent ruling, Texas changed its policy again in April to allow clergy to enter the death chamber. So the high court will now address a slightly different question: What can Moore do while he’s there?

Michael McConnell, the director of the Constitutional Law Center at Stanford Law School, who collaborated on a brief with the Becket Fund for Religious Liberty and Harvard Law’s Religious Freedom Clinic in support of Ramirez, says the court may have taken up the case because “they want to put an end to this.”

John Henry Ramirez, who is on death row, in the visitation area of the Allan B. Polunsky Unit prison in Livingston, Texas, Aug. 25, 2021. (Matthew Busch/The New York Times)
Matthew Busch—The New York Times/ReduxRamirez at the Allan B. Polunsky Unit Prison visitation area on Aug. 25,

“They don’t want to have one or two of these coming along every year,” he explains. “And so if they announce a single clear precedential opinion, that will solve the problem.”

In their brief filed before the court, McConnell, Harvard and Becket argue that the “presence of clergy at executions—and their ability to pray aloud for and touch the condemned—is an ancient religious practice that our Constitution and laws protect from arbitrary government interference.” They cite examples of the practice being allowed in colonial England, the Revolutionary War and the Antebellum-era, among others.

“It is, I think, inconceivable that America in 2021 would decide to not protect a right that was so firmly protected 300 years ago,” McConnell argues.

Prisoners today on Texas’ death row are not allowed physical contact with anyone, besides their handcuffs coming on and off, Moore points out. In all the years they’ve known each other, he’s never touched Ramirez. “Jesus himself, his touch, it healed people,” says Moore. “There’s something empowering and encouraging in [that].” It’s important to Moore said that they both are. HisAs Ramirez dies, touch gives Ramirez an element of comfort.

“John’s life has value,” Moore says. “He’s still a human. You still deserve the dignity of being created in the image of God.”


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