Supreme Court

Texas Would Rather Ban All Chaplains from Execution Chambers Than Placate One Buddhist Inmate in His Final Moments

Equal treatment under the law can mean everyone is treated equally poorly

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TDCJ/ MEGA / Newscom

The State of Texas appears to have found a way around the Supreme Court's recent decision to grant a Buddhist inmate's request for a stay of execution.

Patrick Murphy, whose case I wrote about last week, was convicted under Texas' law of parties in the 2000 murder of a police officer. While he didn't pull the trigger, Murphy was involved in the robbery that led to his compatriots committing murder. After unsuccessfully claiming he shouldn't be executed because he wasn't directly involved in the murders, Murphy alleged his First Amendment right to freedom of religion was being violated.

Murphy converted to Buddhism while incarcerated, but the State of Texas would not allow his spiritual adviser to be by his side in the execution chamber, since the Rev. Hui-Yong Shih is not an employee of the Texas Department of Criminal Justice (TDCJ). Muslim and Christian chaplains are employed by the state, but not Buddhists.

On Thursday, the same day Murphy was set to be executed, the Supreme Court granted his stay. While the order did not include an explanation, Justice Brett Kavanaugh published a concurring opinion detailing his own decision. He explained that Texas was discriminating by only allowing chaplains of certain faiths in the execution chamber.

The two solutions, he said, were to let religious advisers of all faiths in the execution chamber, or confine them to the viewing room, with the key being equal treatment.

Texas opted for the latter. "TDCJ Chaplains and Ministers/Spiritual Advisors designated by the offender may observe the execution only from the witness rooms," the state's updated execution procedures read.

"TDCJ Chaplain(s) will continue to be available to an offender until they are transferred to the execution chamber," TDCJ spokesperson Jeremy Desel added to The Texas Tribune. "The chaplain will also be present in the viewing room if requested."

This procedural change will likely allow Murphy's execution to go forward. After all, he's being treated just like Christian or Muslim inmates now. But it's hard to understand why the state would prefer to treat inmates poorly than to offer them a bit of peace in their final moments.

Chaplains, even those who aren't employed by the state, don't pose any threat; if anything, they're more likely make a soon-to-be-executed person calmer. It's unfortunate that Texas would rather make religious inmates die alone than allow them a friendly presence at the end of their lives.

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  1. Uh… I’m not 100% clear on the libertarian angle here. We *don’t* want Muslim and Christian religious leaders employed by the state for religious purposes, right? If Muslim, Christian, or other religious leader needs to witness the execution, they can do so from the viewing room like friends and family, victims, media, legal experts, and passers by, right?

    From this article it almost seems like Seyton is saying the state should hurry up and hire a Buddhist so that they can kill this guy. Which would seem like a lose-lose that would rub lots of different libertarians the wrong way.

    1. I suspect that Seyton is anti-death penalty, which is the reason behind the snark at the end. But, yeah, the state shouldn’t hire religious leaders. I don’t see how any libertarian could draw a different conclusion.

      It does seem somewhat unreasonable to me that the state wouldn’t allow everyone to have someone in the execution chamber that has cleared whatever background/security clearance they deem appropriate. I mean you’re going to kill the person already, it seems reasonable that they should have some small comfort at the end.

      1. It does seem somewhat unreasonable to me that the state wouldn’t allow everyone to have someone in the execution chamber that has cleared whatever background/security clearance they deem appropriate.

        While I think you solution has merit, everybody who isn’t there to kill the guy is a security risk. The only ‘reason’ they would need to be there is for reasons that squarely fit under the category ‘religious’.

      2. I’d be curious about their reasoning. I’m suspect that the real issue is they feel they’re opening themselves up now for people to have to cover any religion the inmate chooses to express. They might fear that if inmate X says they want a Chaplain for the Church of Whatever, that they will have to necessarily stall until the a chaplain can be hired and pass whatever background checks necessary.

        Then the guy can say they converted to the Church of Idontknowwhat in the interim and the series starts again. I’m guessing out of the two choices this was viewed as more practical moving forward. I’m not sure this is any particular cruelty against Buddhists as much as a practical issue now.

        1. Yeah, reduction ad absurdum the inmate requests a chaplain from a religion for which they are the only member and the State has to figure out whether it recognizes a one-man religion or not.

          1. Yeah, I’m guessing it’s a path of least resistance issue.

            1. It’s Texas, they’re heading them off at the pass.

        2. The minister does not need to be a state employee. If the inmate cannot find one clergyperson of his sect who is willing to come to the execution, that’s his problem – and someone who made up his own religion is likely to be used to not finding clergy. If he has a minister and the state excludes that minister for anything less than reasonable cause to expect the minister will disrupt the proceedings, that’s the stats problem.

  2. The execution is the issue. Allowing or not allowing people in the room at the time is the most banal of trivialities.

    I find not wanting non-state employees in the chamber understandable. Who knows what trouble they might cause!

    1. Yup. I find it hard to believe that anyone is actually surprised by this outcome.

      1. Are they really surprised, or is this just the usual disingenuous rhetoric from the Left?

  3. Next week: Texas will announce a change to their policy to allow state employed religious figures in the viewing chamber.

    1. Sorry, the execution chamber.

      1. Um, that was the old rule that the Supreme Court found unacceptable. Are you saying you think Texas will change the rule back after they get this Buddhist through the chamber? I doubt that would be allowed even by a lower court now.

        1. He’s making a joke that once the guy is dead they will change the rule back.

  4. Here’s what the Supreme Court ordered (Kavanaugh filed a concurring opinion, but that’s not part of the order):

    “The State may not carry out Murphy’s execution pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.”

    So if they want to kill Murphy, they’ll have to let Buddhist dude into the execution chamber, get the Court to change its order, or win the case on the merits.

    1. Or certiorari gets denied.

    2. I don’t get what the state gains by choosing to die on this hill. Perform a security check on this Buddhist advisor, allow him in the chamber this time, and then move on.

      What is the risk here, that the advisor is going to cause trouble with armed agents of the state around?

      1. It’s Texas. Those people are nuts. Every last one of them.

        1. Yeah, everybody. Every last one of them.

          Bigots gonna bigot, I guess…?..

          1. Have you ever tried not being a Texan?

            1. I was born and raised somewhere other than Texas, so yes, I’ve tried it. I’m not sure the extent to which I’m a “Texan” and I’m a something else. What’s your point?

              I thought you were supposed to be on the side of tolerance and understanding, but it turns out you’re as bigoted as J.B. Stoner. Sucks, but it is what it is.

              1. I thought you were supposed to be on the side of tolerance and understanding, but it turns out […]

                That you don’t actually read Tony’s posts, just assigning him positions based on other positions, indepdent of any input from him?

                Just because someone isn’t conservative doesn’t mean they’re hippies and want to hug it out. Trying to insult someone who never claimed to be a hippy by saying they aren’t a very good hippy is just weird.

      2. “What is the risk here, that the advisor is going to cause trouble with armed agents of the state around?”

        It depends what you mean by trouble. A jailbreak? Obviously not. A publicity stunt? That doesn’t seem like an unreasonable concern.

        I’m really surprised that so many people don’t see a distinction between allowing a prison employee in the execution chamber and an outside spiritual advisor.

    3. So if they want to kill Murphy, they’ll have to let Buddhist dude into the execution chamber, get the Court to change its order, or win the case on the merits.

      Wait, what? When I read “unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing” I see that the State could hire any Buddhist they like and perform the execution.

      1. All right, then, but bear in mind that individual identity isn’t necessarily viewed the same way in Buddhism as in our limited Western religions, man.

  5. Equal treatment under the law can mean everyone is treated equally poorly

    Well, they are being killed.

    1. Well, they are being killed.

      Well, technically just the Buddhists and Jews. Others are just being sent to a better place.

      1. It’s true. Hell is a better place than Texas.

        1. That is not true for _every_ place in Texas. It might apply to Dallas, the Gulf Coast, El Paso, the entire Staked Plains, and many places I haven’t seen, but San Antonio isn’t that bad.

          1. Assuming that the popular reports about Hell are accurate, that is. I’m pretty sure that Dante, Niven, and Pournell were just making it up…

      2. IIRC Buddhists are reincarnated so it will depend on when and where that happens as well as what being he is reincarnated into to determine whether it’s a better place. I grant that even though he is currently in a pretty poor place it’s possible for other places to be worse. Coming back as a tardigrade might be interesting.

  6. End the death penalty and you get 2 constitutional issues cleared up in an instant.

    1. Which 2? Because the guys that wrote the constitution didn’t seem to have any real problem with the death penalty and neither did most of America until about the 1960s.

      1. I don’t understand why people insist on reading the entrails of dead founders when they could simply adopt a perfectly valid living constitutional theory. Is it a form of OCD or what?

        1. A living constitution is okay for a lark like Calvinball. It is not good for anything you want to take seriously or justly.

          1. The only difference between originalists and living constitutionalists is that originalists are lying. They make up law out of thin air at least as often.

            1. Shorter Tony “The problem is my liars are bad at it, not the lying”

            2. Even if that were so, explicitly having a living constitution means not having a constitution. It means not having law, just the whim of whoever is in power. Do you really think explicitly living under such a regime would not be a horror show?

              1. Living in England can be annoying but I’d hardly call it a horror show.

                1. Where one can be arrested for live streaming about a criminal trial outside the courthouse that is embarrassing to the government. That the police will question you and confiscate your property for committing hate speech for questioning transgenderism in minors. Where the parents of a sick child ultimately have no authority over their child’s care.

                  It definitely could be worse, but it is not good.

            3. “The only difference between originalists and living constitutionalists is that originalists are lying. They make up law out of thin air at least as often.”

              The Left always Projects their crimes onto the Right.
              At least in this instance, Tony went the extra mile and admitted the Left just makes shit up out of thin air, and that’s the way he likes it.

              1. Controversies don’t get to the supreme court unless there is no easy answer to them. Each time the court makes up a new rule, based on more or less sound reasoning. Only the originalists claim they have the stamp of approval of James Madison. All else being equal, they are liars.

              2. The Left and Right always project their crimes onto one another.

          2. And an “originalist” reading okay with a lark like slavery, miscegenation laws, sodomy laws, denying women the vote, treating Indians as sub-humans, etc. and so-on. It is not good for anything you want to take seriously or justly.

            1. Slavery is not mentioned in the Constitution. Nor is miscegenation, sodomy, female suffrage, treating Indians as sub humans, etc.

              You ae clearly suffering from delusions.

        2. And how does one define the boundaries of a living constitution?

          Oh right…

          1. With Trump appointed judges.

        3. “simply adopt a perfectly valid living constitutional theory”

          So under your living constitution is there a right to a living wage, a right to a clean environment, a right to a job? What punishments would be constitutional? Would affirmative action be constitutional? What about taking someone’s house to give to a private corporation? Would jury verdicts have to be unanimous?

          1. Under a living constitution you could just read it as not pertaining to this issue anyway. It gets you as easily in the opposite direction.

        4. I don’t understand why people insist on reading the entrails of dead founders when they could simply adopt a perfectly valid living constitutional theory.

          But when a police officer shoots someone dead at the scene of a crime you’ll suddenly turn into a traditionalist who can divine the true meaning of the 4th, 5th, and 8th Am. from justices long dead. Not to mention that all the legal scholars between 1836 and ~1960 hardly count as ‘dead founders’.

        5. You may not understand something obvious like that, but that doesn’t mean we don’t understand why you want to be able to determine the rules to adhere to.

        6. Living Constitution = The Constitution Means Whatever the Nazgul Say it Means

          “Libertarian Moment”

    2. Amen.
      It would get rid of a whole host of issues.

    3. PEW: Public support for the death penalty ticks up
      US death penalty supporters outnumber those opposed 54 to 39.
      http://alturl.com/ic2ff

      1. I don’t know how anyone who is skeptical of government power can draw the conclusion that they should have the power to put you to death.

        Studies are mixed (at best) as to whether the death penalty has any effect on crime It seems that all of the appeals to keep the death penalty are appeals to emotion (think of the family of the victim or kill the murdering bastard!)

        1. Someone who is skeptical of government power can draw the conclusion that they should have the power to deprive you of life in the same way that they draw the conclusion that they should have the power to deprive you of liberty or property. Certainly, the standards for deprivation of life should be higher than liberty or property, because once they kill you, there’s no possible recompense if they later find out there was an error.

          The fact that you say that all the appeals to keep the death penalty seem to be appeals to emotion indicates that you either haven’t heard all of them, or that you haven’t listened. One that certainly isn’t an appeal to emotion is the argument that if someone who has demonstrated that they have no respect for the right of others to not be deprived of life is put to death, it will be impossible for them to ever kill someone else again (certainly, there’s a bit of value to the idea that you can just lock them up forever, but there’s also value to the counter-argument that even if you sentence them to life in prison, they might escape and kill again).

          1. The fact that you say that all the appeals to keep the death penalty seem to be appeals to emotion indicates that you either haven’t heard all of them, or that you haven’t listened.

            Or heard them, listened, and is conveniently ignoring. It’s nice to pretend that nobody ever needs killing and/or that individuals could just magically fix it if it needed to happen but it ignores a huge chunk of human nature.

            I can’t understand the people who claim to be libertarians and then oppose the death penalty without recognizing the relative correlation. It’s like the feminists who decry women’s rights in the West. Their ability to bemoan the death penalty directly correlates with the fact that they’ve got a massive federal government and its associated police force that doesn’t toss homosexuals off of roofs for being gay.

            Either the Marshal is going to be a day’s ride away and a handful of ranchers are going to have to deal with a cattle rustler as they see fit until he gets there or there’s gonna be a constable on every corner keeping tabs on everyone and ticketing foreigners for jay walking while whistling.

        2. I don’t know how anyone who is skeptical of government power can draw the conclusion that they should have the power to put you to death.

          I remain unconvinced that locking people in a cage as a lifelong burden to the taxpayer is an essentially superior option. Even at something less than a life sentence, compelling the government to house sociopaths specifically to adjust their behavior doesn’t seem like a power you would want to just hand the government willy-nilly either. There isn’t necessarily evidence that the death penalty prevents crime, but there is plenty of evidence that lighter sentences lead to higher rates of false convictions of all sorts of crimes.

          Some libertarians would like to see the government only involved in life or death matters, but I suppose libertopia’s gotta have prison terms for drunk and disorderly too. I suppose that if you can logically prove that it’s morally superior to lock people in cages and forcibly alter their behavior rather than kill them then the obviously illogical appeals to emotion would seem pretty feeble relatively.

  7. Of course they changed the rule to only allow the condemned’s clergy behind the glass. Otherwise, they would have to get rid of certification. Certify clergy from every possible religious faith (probably a hopeless task) as any death row inmate now has the incentive to have a sudden conversion to the most obscure religion possible.

    This is what comes of trying to shut down the death penalty by indirect, ticky tack legalisms. You do not really care about the effect on the majority of prisoners to get that minor victory.

    1. You do not really care about the effect on the majority of prisoners to get that minor victory.

      Not just the effect on the majority of prisoners but to the legal system itself. Only the most obnoxiously zealous anti-death penalty idiots would deny that there aren’t at least a few people on death row that need to be killed; that burdening the taxpayers with their continued existence, “reform”, and ongoing legal fees isn’t, itself immoral and unjust.

      1. I still grit my teeth when I think that George Ryan, himself a felon, granted these people clemency because he didn’t have the guts or couldn’t be bothered to separate the innocent from the guilty at any level of confidence.

    2. Even Texas doesn’t execute that many prisoners a year that doing a quick background check and 15 minute training for random clergy would be a huge imposition.

      As far as “the most obscure religion possible”, that’s why most all the precedent on accommodating religion has a “reasonable” caveat in there. If you can not identify your chosen spiritual adviser, and that spiritual adviser declines to appear on the date or take the training, then the state made a reasonable attempt and should not be liable for your adviser not appearing at the execution.

      Seriously folks, this doesn’t have to be complicated.

  8. How about banning government sanctioned death of citizens you Texas gov faggots

  9. Good move Texas, execute this human vermin and be done with it.

  10. Good. The state should not employ chaplains, period.

    Also, how the heck would a Buddhist comfort a murderer about to die? Since thanks to karma, he’s going to have to “pay” for his crimes in his next lives. Won’t be coming back as a low caste dude in India in his next incarnation? Or a opossum or something?

    1. You’re thinking of Hinduism, where Karma is related to caste and people are born into good/bad situations based on how good/bad they were in a previous life.

      Buddhism was a rebuttal of the caste system’s ties to Karma, and gets fuzzy with the whole thing.

      That said, Buddhism, as practiced in America, is often Zen Buddhism which tends to not focus as much on the reincarnation/gods bit and focus on personal enlightenment.

  11. The State of Texas appears to have found a way around the Supreme Court’s recent decision to grant a Buddhist inmate’s request for a stay of execution.

    What does Setyon think “[finding] a way around” means, that he thinks choosing one of two options presented meets that definition?

  12. When I’m executed I want my emotional support giraffe in the room.

    1. Piker. I will demand my emotional support shark.

  13. Let’s see – –
    Option one; hire as many chaplains as there are current and future faiths in the known universe.
    Option two; fire the few chaplains we now employ and save a few bucks.
    Now let me think about this.

    Fewer government employees is better for Libertarians, right?
    No religious government employees is better for Libertarians, right?

  14. Seriously?

    They’re murderers. Their victims didn’t have a loved one at their side and these murdering wastes of skin didn’t care.

    They should die knowing they’re the scum of the earth and the rest of us will go on glad they’re gone.

  15. If you’re more offended by the state paying for religious advisors for the condemned than you are at the state paying to kill defenseless people, I’d suggest you have your libertarian priorities dramatically mixed up.

    If the state can afford to kill them then it can afford to respect their religious beliefs in their last moments.

    If the state can’t afford that, then stop killing people altogether and the problem resolves itself.

    1. Of course! Why didn’t I think of that?

      If there was no justice there would be no crime.

      That was easy.

    2. “If the state can’t afford that, then stop killing people altogether and the problem resolves itself.”

      Which is the whole point.

      Lawfare to endlessly bleed the process until people will no longer support the death penalty because they don’t want to pay the cost of the lawfare which postpones justice for a decade besides.

      This time, the lawfare ended up speeding up the process.

      1. Lawfare

        Liked. Stolen.

    3. “If the state can afford to kill them then it can afford to respect their religious beliefs in their last moments.”

      I note that *equality* wouldn’t be about privileging people with religious beliefs.

  16. But it’s hard to understand why the state would prefer to treat inmates poorly than to offer them a bit of peace in their final moments.

    It’s honestly harder to understand Gorsuch’s atrocious opinion in Bucklew which basically indicated that he would be perfectly ok with eliminating all appeals and stringing the ‘guilty’ up before they can come up with excuses not to.

    Texas will Texas. Elections hinge on executions

    1. To an objective observer it pretty clear the objective of the anti death penalty bar is to delay any execution as long as possible then object to any execution because of the delays. Guilt is very rarely even an issue, of course until the delay renders witnesses memory’s suspect and the defense has had time to continually attack the whiteness recollection.

  17. You know what grade school and Texas have in common?
    Lots of missing teeth.

  18. It’s not at all hard to see why Texas took this approach.

    If they hadn’t there would be a never ending parade of pre-execution conversions to any number of religions including but not limited to Scientology, Zoroastrianism, Gnosticism, various forms of Native American animism, African animism, voodun Santeria, voodoo and many I can’t think of off the top of my head.

    Given the divisions within the protestant sects it’s even possible that a prisoner could object to a Methodist Chaplin over a Presbyterian or Baptist Chaplin, further even Baptists are divided between various sects sometimes along doctrine sometimes along race . Many Christians don’t believe, for example, Mormons are true Christians.

    Finally there is the very distinct possibility that some anti death penalty clergy of even mainstream religions like Catholicism (which categorically opposes the death penalty on moral grounds) might attempt to disrupt an execution, giving fodder to the anti-death penalty legal community.

  19. Duh.

    If you’re about to be killed, you convert to a 0.1% religion, demanding the State find you a practicioner, and when they do, you have a come to Odin moment, and convert to the next barely existent religion.

    The State can’t background check and train everyone you might want to have with you when you’re executed.

    “But it’s hard to understand why the state would prefer to treat inmates poorly than to offer them a bit of peace in their final moments.
    Chaplains, even those who aren’t employed by the state, don’t pose any threat”

    Yeah, that’s the way to do prison security. On the Trust First model.

    This is not hard to understand at all. Faced with never ending litigation for demands for just a little more accommodation for each prisoner, every one a little more special in their needs than the last, they opted for the equality of no accommodation for anyone. Mission Accomplished. Equality achieved.

    Not hard to understand. Inevitable.

    1. It seems Texas managed to find a way to let Christian ministers and Muslim imams, employed for that purpose, in the execution chamber.

      Along comes a prisoner from another religion, and apparently the whole thing breaks down.

      I think Texas has a Religious Freedom Restoration Act, so I’d imagine that if they could show their new policy is the least restrictive means of achieving a compelling govt interest, they could win, otherwise not.

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