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The Execution of Domineque Ray

Some troubling uncertainties in a case of troubling allegations of religious discrimination

Tonight, the Supreme Court decided by a 5-4 vote to lift a stay of the execution of Domineque Ray, a Muslim inmate who sought to have an imam of his faith, rather than the prison's Christian chaplain, attend him in the execution chamber. (The Eleventh Circuit had stayed the execution on grounds of religious discrimination.) He was executed about an hour ago. I was troubled by these proceedings, but I think that makes it important to disentangle what is going on.

Various people are describing this decision as the next Dred Scott, Korematsu, etc., but I am not sure that is right. The opinion is brief (as Shadow Docket opinions usually are) but it indicates that the claim was not denied on the merits. Rather it was denied because the Court thought it was filed too late. The Court has previously indicated that last-minute stays of excution are disfavored if they could have been filed earlier. This policy probably stems from some dubious reasons, such as a mistrust of the death penalty defense bar, and some better reasons, such as the belief that the Court does not do its best legal thinking in the middle of the night.

Justice Kagan has a very powerful dissenting opinion in response, arguing that the claim was filed as soon as it reasonably could be. The state's statutes did not make clear that only the Christian chaplain could be in the chamber, and the state's actual execution protocols are apparently secrets. The Eleventh Circuit, again, had agreed.

So even though the Court's opinion does not embrace denominational discrimination, I was still troubled that its conclusion seemed to rest on the questionable application of a technicality, with extremely high stakes.

But there is another peculiarity. The district court, who is usually the court in charge of making factual determinations, had concluded that the claim was indeed brought too late, that:

Since Ray has been confined at Holman for more than nineteen years, he reasonably should have learned that the State allows only members of the execution team, which previously has included a state-employed chaplain, inside the execution chamber. Indeed, it was the state-employed chaplain who facilitated Ray's involvement with an imam for spiritual advice regarding his impending execution.

The Eleventh Circuit second-guessed this determination, concluding that the state had "offer[ed] only the barest assertions about common knowledge in the prison." But still, it was the district court who held a hearing and who usually makes credibility judgments and factual determinations.

So it seems to me that the execution really hangs on a set of factual judgments and procedural rules -- should Mr. Ray have known (or did he know) about the prison's policies earlier, and what is the Supreme Court supposed to do when the district court and a court of appeals disagree on a factual question like that in a case of thin evidence? I am not sure what the legal answer is, and that makes it an easy case in which to indulge one's own priors about who are the bad actors here. And that is troubling whoever is right.

(Finally, speaking as a departmentalist, not every responsibility should end with the federal courts. Even if the Supreme Court forbids intervention, I think the state ought to try harder to accommodate the religious needs of the condemned.)

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  • Kazinski||

    What it comes down to is that the state only has one official chaplain, and he happens to be Christian. And even though he is Christian he put the inmate in touch with a imam, but the imam couldn't attend the execution because he's not on the official staff.

    "This policy probably stems from some dubious reasons, such as a mistrust of the death penalty defense bar"

    Probably not so dubious at all, every time there is an execution I'm sure the justices are woken up, pulled out of dinner, the movies, interrupted during coitus, by some last minute petition from the death penalty bar trying to find some argument that will stick on the wall long enough to get a delay.

  • NashTiger||

    Wrong. The imam was free to meet with the condemned in his cell, and be with him along his last walk. Just not the last 3 steps into the chamber.Only Prison officials are allowed in there. Baptist or Catholic or 7th Day Adventist prisoners cannot get their own chaplain if the chaplain is Methodist

  • Kevin Smith||

    This is one of those instances where it would be better to just not let any of them into the chamber. By just having the one chaplain allowed in the state is essentially endorsing that religion/denomination above all others

  • Brett Bellmore||

    Agreed; Either amend the rule to have an exception, or get rid of the chaplain.

    Which doesn't change that the guy's attorney was being deliberately dilatory. Somebody should raise this issue promptly, instead of saving it for a last minute gotcha.

  • NashTiger||

    No, no it isn't. This shytturd isn't in charge. Next, you'll let him kick out the Doctor because he Jewish, or the orderly because he's white.

    HE HAD AN IMAM WALK WITH HIM up until the last 3 steps. GTFO

  • NToJ||

    What is it you think the chaplain is doing in there?

  • Kazinski||

    The point is that there is only one chaplain on the official prison staff, so he is the only one allowed in the chamber.

  • Eddy||

    So who does he have to hold his hand when he's electrocuted?

  • Alpheus W Drinkwater||

    It would make sense to use another death row inmate for that purpose.

  • Goju||

    On a blog pretty much dedicated to law issues and lawyers, it's unlikely anyone will see the obvious answer. His defense team. Loser pays.

  • Lee Moore||

    ^^^

    My very thought. Perhaps we could add the 11th Circuit too. Though maybe they should be regarded as part of his defense team anyway, since they're willing to amend his fiilings for him.

  • Alpheus W Drinkwater||

    Not sure why there is such disdain here for the death penalty defense bar. I guess it's natural for people who are driven by ideology rather than principle to have disdain for those who are the other way around.

  • Lee Moore||

    I think the disdain is mostly directed at those practising in the death penalty defense bar, using the title "Judge."

    As for mere attorneys, opinions will obviously differ as to the proper balance between an attorney's responsibilities to his client, and his responsibiity as an officer of the court. The extent to which it is acceptable to dissemble, advise your client as to which untruths to tell, advance stories which you know to be untrue, and game the admin procedure - eg by leaving filings to the last minute to create delays will be a matter of opinion.
    Obviously if you believe the attorney has no responsibilities beyond using any means possible - not excluding letting the air out of the tyres of the executioner's car - to keep his client alive, then fine, you're welcome to your opinion.

  • NashTiger||

    Ray's attorneys filed a federal lawsuit last week claiming Ray's religious freedom was being violated because the AL DOC would not allow his imam to be in the execution chamber. Officials told Ray he would be allowed to meet with his imam up until being prepared for execution, but the imam would have to watch the execution in a witness room.

    The department follows protocol "regardless of the chaplain's spiritual belief or that of the inmate." Horton said the ADOC protocol "only allows approved correctional officials, that includes the prison's chaplain, to be inside the chamber where executions are lawfully carried out. The inmate's spiritual adviser may visit the inmate beforehand and witness the execution from a designated witness room that has a two-way window."

    The Alabama AG appealed that ruling to the U.S. Supreme Court on Wednesday afternoon.
    "It was bad enough that the court amended Ray's pleadings for him. But worse still is that the court's Establishment Clause analysis and proposed remedy make no sense. The Eleventh Circuit's holding that the State had favored one denomination over another might make sense if the State allowed only Christians to bring their preferred spiritual advisers into the execution chamber, but the State forbids anyone who is not employed by ADOC into the execution chamber."

    al.com

  • santamonica811||

    Are there any state or federal prisons where the prison's official religious leader is a Rabbi? An Imam? A Satanist?

    If a Born-Again Christian was to be executed, but only a Muslim religious leader could be in the final room with him; I wonder if people would feel differently? (Genuine question. My guess is that there *must* be a few rabbis and imam, given the number of prisons in the United States . . . but there are not many executions, so I'm not sure if this issue has come up so far.)

  • AmosArch||

    probably not many. Not much overlap between the people who feel sorry for murderers not getting their choice of religious mentor at an execution and the people concerned about anti Christian prejudice

  • santamonica811||

    Amos,
    I suspect you're probably correct. I am not at all religious myself, so I don't care on one hand. But on the other; if ever you want to coddle someone's (reasonable or not) faith, I'd think that time is right before their moment of death. Given the few executions, I can't imagine it would be any real imposition on a prison, and essentially actual risk factor.

    It's not a hill worth dying for (pun intended). But some small acts of mercy and charity seem to be not a horrible thing for the state to accommodate. (Yes, even for awful people who have done the worst of crimes.)

  • AmosArch||

    Dred Scott brutally murdered several people? Huh, learn something new every day..

  • Sarcastr0||

    Are you not clear on how precedent works?

  • Brett Bellmore||

    I think it's more a matter of being clear on the fact that this case has nothing whatsoever to do with Dred Scott, nor is it in any way analogous.

  • Sarcastr0||

    Yeah, invoking Dred Scott is just legal melodrama.

    Not that I care much for de facto state endorsement of Christianity, but that issue does rather pale next to dehumanizing a race of people.

    Though I wish for a bit less enthusiastic anti-virtue signaling of some in their performative dehumanization of the murderer.

  • Brett Bellmore||

    Declaring it to be anti-virtue signaling privileges one particular conception of virtue. From a different perspective, the murderer dehumanized himself, and it is virtuous to recognize that.

    Anyway, on the merits I'm in agreement: They should permit an Imam into the execution chamber, there's no good reason to prohibit it. And hiring official chaplains would be of dubious constitutionality, if not so thoroughly endorsed by founding era precedent. I wouldn't weep if the Court ruled it unconstitutional on a textual basis.

  • Sarcastr0||

    From a different perspective, the murderer dehumanized himself, and it is virtuous to recognize that.

    Hating someone who deserves it is not a virtue. Neither is righteous bloodthirst.

  • Brett Bellmore||

    Again, you're privileging your own conception of virtue.

    You're entitled to assert that your own idea of virtue is the correct one, just keep in mind that others' ideas of virtue ARE ideas of virtue, not anti-virtue.

    For my part, I don't hate the guy. It's been a long, long time since I've actually hated anyone, it's not really a productive emotion. (Under most circumstances, anyway.)

    But is an insult to the moral agency of a person not to recognize when they have, by their own choices, dehumanized themselves.

  • Sarcastr0||

    In the end it's a semantic point - signaling your savage righeousness is signaling something the signaler believe is positive, but virtue is not a postomodernist purely subjective value. And saying 'guy is bad, who cares about his rights' is not a virtue by any common definition I have heard.

  • y81||

    On the semantics, Bellmore surely has the better of the argument. People who advocate harsher punishments for certain acts, say by as eliminating the statute of limitations for various sex crimes, or expelling (non-Mexican) students who wear sombreros, would surely be described by most of us native speakers as "virtue signalling," not "anti-virtue signalling."

  • Sarcastr0||

    Disagree - people being performatively savage are tracking a different thing than people being performatively woke.

  • SteveMG||

    It's not like he "smirked" at a Native American who was banging a drum. Now there's a person to attack for ugly behavior.

  • Sarcastr0||

    Calling someone an a-hole is not quite the same as baying for the state to literally kill him and screw the Constitution.

    I have very little doubt the murderer here is an a-hole.

  • Chem_Geek||

    "They should permit an Imam into the execution chamber, there's no good reason to prohibit it."

    There most certainly is; security. Allowing unvetted, J. Random Clergyman into the chamber is a major risk.

  • Brett Bellmore||

    What exactly is the nature of this risk supposed to be? Do they store classified documents in the chamber? The master switch that unlocks all the cell doors in case of emergency? The prison warden's FB password?

    What exactly is supposed to be at risk here?

  • gormadoc||

    Perhaps a cleric who's presumably been checked for weapons is able to overpower armed guards? Maybe it's a D&D cleric.

  • Raspberry243||

    Particularly over level 25 with Psionic powers.

  • Krayt||

    Fool! A D&D cleric can just resurrect him after they take him out for burial.

  • David Nieporent||

    Pro tip: any time someone handwaves the term "security" without any elaboration, he's bullshitting.

  • NashTiger||

    There's all kinds of good reasons to prohibit it. Surely you aren't that stupid. You are going to put an unauthorized person within arms reach of the executioner?

  • Brett Bellmore||

    I'm pretty sure the executioner spends a good deal of his life passing within arms' length of unauthorized people.

    Really, it shouldn't be a problem for an Imam to attend an execution, the death penalty is allowed by Islam, so he'd have no religious objections to it.

    Aren't you concerned that they're allowing a hardened killer within arms' length of the executioner?

  • David Nieporent||

    If they let him in, he's not unauthorized, now is he?

  • NToJ||

    Why isn't the chaplain a risk? And what can the imam do outside the chamber that he can't do inside the chamber?

  • RobinGoodfellow||

    The chaplain is a prison employee. They only allow prison employees inside.

  • Lee Moore||

    I was troubled by these proceedings

    Mr Ray murdered Tiffany Harville in 1995. Tiffany was raped, then had her throat slit and was then relieved of her purse containing $6 to $7. Mr Ray was convicted in 1999.

    But Mr Ray was still alive in 2019, still filing motions to try to keep himself alive for a bit longer. (Tiffany, btw, is still dead.) If anything about "these proceedings" is troubling, it's that Mr Ray made it into the 21st century.

    This policy probably stems from some dubious reasons, such as a mistrust of the death penalty defense bar

    Color me dubious about your dubeity.

  • Martinned||

    The pound of flesh, which I demand of him,
    Is dearly bought; 'tis mine and I will have it.

  • Bob from Ohio||

    Citing anti-Semitic stereotype fictional figures is hardly the "gotcha" you imagine.

  • JonFrum||

    Dear Bob


    Please remember - half of all people have a below average IQ.

  • Sarcastr0||

    Yeah, whenever anyone says pound of flesh' or 'prick me do I not bleed' I never listen because it's probably anti-Jew.

  • Alpheus W Drinkwater||

    I'm surprised there isn't a movement to rename the Folger Shakespeare Library.

  • Lee Moore||

    The pound of flesh, which I demand of him, Is dearly bought

    I would think so, in this case. It's not unusual to value the lives of innocent fifteen year old murder victims reasonably highly. Though it would perhaps be educational to hear the contrary view defended.

  • Sarcastr0||

    Bad news: killing someone doesn't bring anyone back, Lee.

    Your balancing of lives doesn't make a lot of sense.

  • Bob from Ohio||

    Putting the killer in prison does not doesn't bring anyone back either.

    You are arguing that no punishment is justified.

  • Sarcastr0||

    No, I'm saying the 'weigh the lives of the victims against the murders' rights' justification is bad, not that all justifications are bad.

  • Brett Bellmore||

    Again, get where you're coming from as a policy matter, but the courts aren't supposed to be issuing "as a policy matter" rulings.

    And the death penalty is pretty clearly constitutional as a textual and originalist matter, and in terms of democratic legitimacy, too.

    This is one where the courts aren't likely to impose your preferred policy, you're going to have to actually win people over who don't wear black robes.

  • Sarcastr0||

    Lee's making a policy/morality argument (or what looked like one but was largely an emotional argument), that's how I engaged in reply.

    As a legal matter, I tend to think Kagan's analysis is a better one based on what the fact pattern looks like.
    I also do not care for the endorsement aspect.

    As to the constitutionality of the death penalty, as a non-originalist I see our understanding of what is cruel and unusual changing, and while I think we're a long way from the death penalty in principle being beyond that line, I do think there are good arguments that as operationalized in court and in prison it's pretty bad.

    The main fight against the death penalty I'm seeing is these days seems to be prosecutors and governors.

  • Lee Moore||

    Lee's making a policy/morality argument (or what looked like one but was largely an emotional argument), that's how I engaged in reply.

    If the courts insisted that emotional arguments be kept out of death penalty cases, Mr Ray would have been executed within a year of his original conviction. These decades long slowwalk charades through the courts are fueled almost entirely by emotional arguments. This is cruel, he had a deprived upbringing, it might hurt, he's changed and is full of remorse, his sister loves him, he's become a devout Christian / Moslem / Buddhist etc.

    But when it's pointed out that there was a victim, she's no longer with us, the last hour or so of her life was horrible, the killers were callous beyond belief - and they are still with us, gaming the courts twenty years on - nooo, that's an emotional argument. We can't have that.

  • Lee Moore||

    the 'weigh the lives of the victims against the murders' rights' justification is bad

    There's no justification for executing a murderer - or for that matter doing anything else to him - without weighing the value of what he has destroyed. That's why we don't execute people for shoplifting.

    The murder victim has rights too - that the state attempt seriously to investigate the murder and bring the murderer to the justice that is established by law. The law does not prescribe a twenty year reprieve for murderers while their lawyers play games with friendly judges.

  • Sarcastr0||

    You think revenge is the only justification for the death penalty -- and that's fine?!

    That's messed up, man. Discuss deterrence, or removal, or a collective perception justice. Lots of ways you can justify the death penalty other than 'revenge is good when the government does it.'

    Your second paragraph is circular as all get-out.

  • Lee Moore||

    You think revenge is the only justification for the death penalty -- and that's fine?!
    That's messed up, man. Discuss deterrence, or removal, or a collective perception justice. Lots of ways you can justify the death penalty other than 'revenge is good when the government does it.'

    Of course it's messed it up - you messed it up yourself ! I said nothing of the kind.

    The value of the victim's life is not relevant merely to the justification of retributive justice*, but also to the justifications of deterrence (bigger penalty = stronger deterrent = more approrpiate for more damaging crime) and of incapacitation and signalling for the same reasons. (I assume removal and collective perception justice refer to the last two - if not, I have no idea what they are.) In short, I'm not aware of any theory of punishment that is not interested in the harm value of the crime.

    * retributive justice is of course not the same thing as revenge. It may, in some breasts, evoke similar emotions, but impartially administered by the state it is a different beast. It is the justice of an eye for an eye, proportionate justice, measured strictly to achieve balance - neither too little punishment nor too much. Revenge carries no such implication - of injury limited in severity in proportion to the crime.

  • Lee Moore||

    retributive justice is of course not the same thing as revenge. It may, in some breasts, evoke similar emotions

    But in other breasts it may not. For example, if i review my own emotions in this matter, they seem to constitute a modest dose of anger that this guy has been allowed to get away with it for twenty years, and that the legal system has been playing games to avoid applying the punishment prescribed by law. It is similar to the emotion aroused when you see someone jumping a queue - even when it's not a queue that you're in.

    I have no personal connection with the Harville family, I don't feel any injustice has been done to me or mine. What is feel is that Tiffany, and her family, have been unjustly treated by the legal system, and the legal charade should have come to an end a long tme ago.

    I really don't think this is the same as - or even close to - a lust for revenge. Of course revenge would be front and center if the victim had been my daughter. But she wasn't. The emotion is anger. Not merely at Mr Ray but at the people pretending to apply the law, while flouting it.

  • Alpheus W Drinkwater||

    The fact that many people have been put on death row and/or executed for crimes which they did not commit is reason enough not to have the death penalty. It is also reason enough to proceed slowly and carefully before the sentence is carried out. Justice Scalia's ardor for speedy, legally sanctioned killing was one of his least admirable qualities.

  • Lee Moore||

    The fact that many people have been put on death row and/or executed for crimes which they did not commit is reason enough not to have the death penalty.

    No, it isn't.

    No human endeavor is error free, and plenty of valuable human endeavors cause the death of innocents. If you want perfection, get an angel.

  • Alpheus W Drinkwater||

    You have got to be kidding me. You're okay with governments putting people to death when it has been demonstrated again and again that many innocent people are on death row? Just because you are so keen on executing the guilty ones? That's a valuable human endeavor?

    Just out of morbid curiosity, where would your line be? 20 percent innocent, still okay? 50 percent? I'm sure the innocent people executed are comforted by the fact that they are participating in a valuable human endeavor.

  • Lee Moore||

    You have got to be kidding me.

    Right back at ya.

    You OK with the government permitting people to drive motor cars even though roughly a hundred people a day are killed as a result ? Not counting the injured.

    Just out of morbid curiosity, where would your line be ? 200 a day ? 1,000 a day ?

    The death penalty is a valuable human endeavor because it reduces the number of murders. It is also a just punishment for murder - any other punishment being unjustly lenient.
    The occasional mistake is, certainly, unjust. But there's nothing just about being killed in a car crash either. Or in being murdered, for that matter.

    Even if you're a deprived low IQ inner city African American man (presumably making you a top candidate for wrongful execution) you're still running a greater risk of unjust death from murderers who are undeterred, knowing that the chances of them actually being executed are microscopic.

  • Alpheus W Drinkwater||

    So you equate governments executing people to governments permitting them to do something dangerous, like driving a car? I've seen you make good points here before, but that is pretty ridiculous. Do better.

  • Lee Moore||

    A pointless quibble. Obviously motoring is not exactly the same as the death penalty. We were discussing valuable human endeavors. Motoring is a valuable human endeavor even though it predictably causes the death of innocents. Likewise the death penalty.

    But if you insist on your quibble, let's just settle for the government :

    (a) abandoning the use of cars and planes for its own purposes
    (b) stopping operations in VA hospitals
    (c) removing police weapons, and requiring the police to use persuasion only
    (d) and getting rid of the armed forces

    Happy now ?

  • Lee Moore||

    In fact, we've had quite a good dry run recently with the police shooting a few possibly innocent young black guys, resulting in city authorities telling the cops to back off, resulting in the cops backing off, resulting in the murders of lots of extra possibly innocent, and lots more definitely innocent, young black guys. And gals.

    Armed policing is a valuable human endeavor too, btw. But it does kill innocents. By accident, sure, but utterly predictably.

  • Alpheus W Drinkwater||

    I suppose if you base the entire argument on your definition of what constitutes a valuable human endeavor, you can defend and rationalize any government actions that fall within that definition. But it still just comes down to what you think is valuable. Not a persuasive argument, just your opinion that death penalty good.

    In my opinion, the death penalty produces nothing valuable for humanity that comes anywhere close to justifying putting innocent people to death. With armed policing or operations in VA hospitals, perhaps the math is different. But at least those are more germane analogies than governments allowing people to drive. And you still haven't answered my question as to what percentage of innocent people executed would be unacceptable to you.

  • Kazinski||

    I do believe in both punishment and deterrence, and don't think its particularly controversial that murderers don't like to be executed. So whether or not the deterrence is effective, the punishment part seems to work.

  • Lee Moore||

    Yeah, it's worth bearing that in mind each time the abolitionists dust off their ludicrous meme that we should get rid of the death penalty because keeping someone in prison for life is a harder punishment. The folk on death row disagree.

  • Alpheus W Drinkwater||

    (Tiffany, btw, is still dead.) Citation needed.

  • NToJ||

    The tragedy is that the state has made Mr. Ray a cause by pointlessly denying him a trivial religious right afforded to other equally horrendous shitbags. Maybe Mr. Ray should be tortured to death. Maybe people on death row don't deserve religious guidance near the end, or last meals. But it's pretty fucking stupid to put a chaplain in the execution room but then specifically deny an imam access.

  • Brett Bellmore||

    "This policy probably stems from some dubious reasons, such as a mistrust of the death penalty defense bar,"

    I don't find that particularly dubious. You'd have to have your eyes shut pretty hard to have not noticed that the death penalty defense bar pulls deliberate procedural tricks to delay where they know they won't win on the merits.

  • Bob from Ohio||

    Its not dubious at all. You have to be literally stupid to believe otherwise.

  • NashTiger||

    As an example: The State began offering a choice of execution - Lethal Injection, or Nitrogen Hypoxia (the best way to go out IYAM)

    All the Death Row inmates chose Nitrogen Hypoxia, because it was new, there was no established apparatus or procedure yet, and it had not been tested in court. Ray said his Muslim faith would not allow him to choose his own death. So the state chose Lethal Injection, which was ready to roll. So, then he filed an appeal saying he wanted Nitrogen Hypoxia after all....I guess his faith wasn't really all that important

  • NToJ||

    Why would that make people mistrust the defense bar? If the procedural defenses aren't worthwhile, we should just abolish them. But I'd hardly blame counsel for trying to postpone the death of a client through available procedural defenses.

  • Rev. Arthur L. Kirkland||

    You may be too good a person -- concerned about the rights of persons who are not white Christians, for example -- to be a current Republican or conservative, Prof. Baude.

  • Martinned||

    I'm usually the first to reach for formalistic arguments, but if ever there's a time to take a common sense approach, it would be right before someone is executed.

  • Brett Bellmore||

    The problem here is that "right before" Ray was executed should have been about 20 years ago. The only reason he was still alive at this point is a couple decades of delaying tactics.

    On the merits, I see no good reason the Imam shouldn't have been allowed into the room. But I find the idea that his counsel didn't know it wouldn't be permitted until a few days ago very dubious; It wasn't the result of some new rule, after all.

    No, this was a deliberate delaying tactic, after the guy is already a couple decades late being executed.

  • Sarcastr0||

    Did you read Kagan's dissent? I agree with you that death penalty defense attorneys often go for delay when execution becomes inevitable, but she makes a pretty convincing case that here this was not a bad faith delaying tactic.

  • Brett Bellmore||

    There are no bad delaying tactics, so far as opponents of the death penalty are concerned.

    While Ray himself would probably have not been on notice that the Imam could not enter the actual execution chamber, his counsel would have been. So the filing was almost certainly dilatory.

    Contrary to Will's assertion, there's nothing dubious about noticing that the death penalty bar is fond of dilatory tactics, and extending them no presumption of good faith because of this.

    On the merits, though, the state should change this policy.

  • Sarcastr0||

    I don't disagree with opponents of the death penalty, being one myself. But acknowledging that culture doesn't mean you get to dismiss all their arguments as bad faith a priori.

    I don't think it's reasonable that counsel should have known about the peculiarities of the operation of Alabama's chaplaincy, being as this does not appear to have come up before.

  • WJack||

    You just make Brett's point.

    Wondering if you read your remarks before posting?

  • Sarcastr0||

    Do you think it's okay to make an adverse assumption about defense attorneys in death penalty cases?

  • WJack||

    Sure.

  • Sarcastr0||

    That's bad.

    Assumption of ethics and professionalism is important for our adversarial process to yield results.

    You need to prove something is dilatory, and not just assume it because you believe defense attorneys are liars.

  • Bob from Ohio||

    24 years to punish this guy. I think we can reasonably think his lawyers were intentionally dragging it out.

  • WJack||

    Google – a lawyers duty to a client – then post again.

  • WJack||

    Sarcasto: Google – a lawyers duty to a client – then post again.

  • Sarcastr0||

    Thanks, I'm aware of lawyers' duty to a client. That duty does not extend to bad faith before the court.

  • WJack||

    Who said that? Best take another look..

  • Sarcastr0||

    What are you trying to argue, WJack?
    It looks to me like you are arguing that defense attorneys should be assumed to be always lying to the court because of their duty to their client.

  • Rossami||

    re: "his counsel would have been" "on notice that the Imam could not enter the actual execution chamber"

    I think that statement assumes facts not in evidence. Based on some of the dissenting reactions, the state apparently went to some lengths to conceal their procedures and regulations from common knowledge. Do you have evidence that the attorney did know or could reasonably have known about this restriction prior to the denial on the 23rd?

  • Lee Moore||

    Based on some of the dissenting reactions, the state apparently went to some lengths to conceal their procedures and regulations from common knowledge.

    Obviously. Publishing their procedures would fuel a hundred more lawsuits, about whether this or that procedure was OK. The courts would want to carefully consider procedure 12, and would put everything on hold till they'd made up their mind. And then they'd rule that the state must add in rider a, b and c to procedure 12, which would add another $250,000.

    And then when the state failed, by a comma, to follow some procedure; or merely arguably failed, then, hey presto, time for another delay and another couple of riders. Pretty soon you've ramped it up to $27 million per execution and even the GOP state legislators want to scrap the whole thing on cost grounds.

  • bevis the lumberjack||

    "On the merits, though, the state should change this policy."

    Yeah they should. The problem is that they won't unless some external power forces them to do so. The external force that is supposed to do it declined to assert itself.

    I was and am a fan of Gorsuch, but I'm disappointed in him for this bullshit.

  • Bob from Ohio||

    It will be changed now. No clergy in the room.

    Everybody happy?

  • Alpheus W Drinkwater||

    Would that be "A neutral law of general applicability?"

  • David Nieporent||

    While Ray himself would probably have not been on notice that the Imam could not enter the actual execution chamber, his counsel would have been.

    First, you've completely made up this assertion. It's an utter and total fabrication on your part. You don't have the slightest basis for saying it. You don't know who his counsel is, what the guy's experience is, or whether this has ever come up before for him.

    Second, even if his counsel did know, how would that necessarily have helped? Did the counsel know that Ray cared about this?

    Third, this didn't have to delay anything. All the prison had to do was consent to Ray's request, instead of inventing obviously false objections, and it wouldn't have changed the execution schedule.

  • Bob from Ohio||

    "I agree with you that death penalty defense attorneys OFTEN go for delay when execution becomes inevitable" [caps added]

    Often? Try always.

    24 years for this monster. 9 years longer than his victim was alive.

  • Brett Bellmore||

    But it's less than the sum total of the lifetimes of all his murder victims...

  • apedad||

    Brett - why are you continuously so against people using any and all constitutional means available to them?

  • WJack||

    Do you ever look in a mirror before posting?

  • apedad||

    Not sure what my face has to do with this but I ALWAYS support people using constitutional methods available to them.

    Neo-nazis want to hold a rally, OK; does a town want to try and stop them and use whatever legal methods they can, also OK.

    2A is law; are there legal ways to still restrict gun usage/ownership? Yup (at least according to the SC and not lovecon).

    Brett OTOH, continuously complains about people using their constitutional rights.

  • Brett Bellmore||

    I'm not sure that a dilatory filing is actually a constitutional right.

  • Sarcastr0||

    Fair enough, except that you're using reputation evidence to prove dilatarity (it's a word now) that is not otherwise proven.

  • Krayt||

    Neo-nazis want to hold a rally, OK; does a town want to try and stop them and use whatever legal methods they can, also OK.

    Are you sure? I seem to recall a number of cases where impure (i.e. First Amendment-violating) motivations have queered laws or applications of them. I am not fine with it.

    Not fine with it when southern states add needless requirements to abortion because they want to stop abortion.

    Not fine with it when California requires needless regulations of guns because they want to stop gun ownership.

    Not fine with it when New York warns banks to "consider their reputation" when loaning to gun companies, because, you know, (Monty Python mafia voice) sometimes contracts get...broken.

    Not fine with it when Obama announces proudly an investigation into S&P because they had the temerity to downgrade the government's rating from 17 Aaaaa++++++ to only 16.5.

  • Martinned||

    Where common sense comes in is, basically, the weighing of equities:

    The proper response to the state, on the merits, is "GTFO, your argument is ridiculous". Moreover, how long can it take to find an imam who can do the job, given that the imam who has been attending to Ray's "spiritual needs" so far (AFAIK) willing and able to do it? So if this causes more than a day of delay, it's due to the bureaucracy in Alabama, not due to anything the plaintiff did.

  • Brett Bellmore||

    Yeah, I don't have any problem with the argument that it should have been permitted. Just with the idea that they had to allow a late filing to delay an execution that was already 20 years late.

    If this were a matter of something that might overturn the execution, there would be a much stronger case for ignoring that the filing was last minute.

  • Gasman||

    Very good reason for not having any old person in the execution chamber is to keep things from becoming a spectacle in concert with the anti-capital punishment media present in the witness section.
    The chaplain is a professional, answerable to the state, vetted for not creating a scene or pandering for the witnesses or any particular viewpoint about the death penalty.
    So, no, it would really not do to have any non-state actor present in the execution chamber.

  • Brett Bellmore||

    Just prohibit recording devices, and the motives for creating a spectacle evaporate. You don't have to allow media into the chamber, just because you allow somebody's spiritual advisor.

  • Rossami||

    Or better, recognize that prior restraint is generally a bad policy and instead hold the actual disrupters accountable for their actions without burdening everyone else on mere speculation that they might disrupt things.

  • Brett Bellmore||

    This is the death penalty, it's not mere speculation.

  • bevis the lumberjack||

    "The chaplain is a professional, answerable to the state, vetted for not creating a scene or pandering for the witnesses or any particular viewpoint about the death penalty.
    So, no, it would really not do to have any non-state actor present in the execution chamber."

    Tell me again why the chaplain needs to be in the execution chamber at all.

    We're all supposed to be treated equally by the government when it comes to religion. There are several easy fixes to this problem as it relates to this specific situation. The fact that Alabama resisted (and continues to resist) those easy fixes says something that's not too good about Alabama and their fealty to the Constitution.

  • ||

    The founders never intended the 1st Amendment to cover anything but the various denominations of Christianity. Certainly not Islam.

  • bevis the lumberjack||

    "The founders never intended the 1st Amendment to cover anything but the various denominations of Christianity."

    I love how people who normally argue for strict adherence to the language in the Constitution periodically assume that the people that wrote it were illiterate morons who were incapable of writing what they meant to write.

    Or you're a parody. Either way.....

  • ||

    I call for strict adherence to original intent, not to the language.

  • bevis the lumberjack||

    "I can read the minds of people that have been dead for 200 years".

  • ||

    You mean like when you leftists decided that the drafters of the 14th Amendment were intending to protect the right in 1868 to finish inside another man's rear and get "married?"

  • bevis the lumberjack||

    "You leftists".

    LOL. Yeah, leftists like me.

    Your obsession with gay buttsex is unhealthy. Probably ought to see a professional.

  • mad_kalak||

    Not quite true, they intended it to cover the vague Deism of persons like Ben Franklin and Thomas Jefferson. It was a hard bit for them to cover Catholicism as it was. But it is what it is now, as a result of bad immigration policy.

  • ||

    Right, that's a fair point. They never though we'd be stupid enough to let hordes of third worlders immigrate here.

  • wnoise||

    But as Saint John of Damascus attested, Islam is nothing more than a Christian heresy, akin to Arianism, with Muhammed as a false prophet.

  • Bob from Ohio||

    "Islam is nothing more than a Christian heresy"

    Both are Jewish heresies.

  • NashTiger||

    He doesn't. The state agreed to remove the Christian chaplain.

    Now, you want to deprive 90% of the rest of prisoners that option.

  • Bob from Ohio||

    "For 20 years, Dominique Ray has successfully eluded execution for the barbaric murder of a 15-year-old Selma girl," said Attorney General Marshall. "In 1995, Ray brutally deprived young Tiffany Harville of her life, repeatedly stabbing and raping her before leaving her body in a cotton field. A jury gave him a death sentence for this heinous crime. A year before, Ray had also taken the lives of two teenage brothers, Reinhard and Earnest Mabins. Tonight, Ray's long-delayed appointment with justice is finally met." Alabama Attorney General Steve Marshall

    What was the faith of the religious figures who were there when he killed Tiffany Harville, Reinhard Mabins and Earnest Mabins?

  • bevis the lumberjack||

    "What was the faith of the religious figures who were there when he killed Tiffany Harville, Reinhard Mabins and Earnest Mabins?"

    Damn straight. We should be as monstrous and inhummane as they were. Proves that we're better than them.

    Oh, wait...……..

  • Bob from Ohio||

    I value the victims lives over his jailhouse conversion to delay him meeting the devil.

    We put down rabid dogs don't we?

  • Sarcastr0||

    You can always be counted on to lust for death, Bob.
    A lust that regularly trumps due process, including prohibitions against torture.

    What's up with that?

  • Bob from Ohio||

    He got way much more process than due.

    Pres. McKinley's killer was executed seven weeks later. Seems about right.

    You can always be trusted to stand up to protect murderers. What's up with that?

  • Brett Bellmore||

    I tend to agree with Bob on this point: He's already gotten all the process he was due, and then some.

  • Sarcastr0||

    Bob, I like due process, and don't like the death penalty. Not the same as loving murderers. Not surprised you mix those up since you tend to go straight to the emotional arguments in issues like this.

    Brett, due process isn't about some totality it's about each step. Just because you think there were too many steps in the past doesn't mean you get to ignore the one in front of you.

  • Bob from Ohio||

    "emotional arguments "

    Guilty.

    Rape and murder of teenage girl by monster who had already murdered two men merits it.

    You oppose the death penalty but favor abortion. Death of the guilty, bad. Death of innocents, good.

  • Sarcastr0||

    I'm against killing, period. You assuming your framing is the correct one doesn't change that.

    You, on the other hand, have no dispute about framing in the death penalty. Screw better angels, you just love righteous anger how good it makes you feel when bad people you don't know are killed. Heck, even if some of them are innocent!

    I disagree with people who like the death penalty. You're special on this issue though. We have a fine time locking horns on all sorts of stuff. But to me, your reliable embrace of emotion over everything else in cases of terrorism and murder is taking a joy in your bestial nature that I find kind of off-putting, ever since you spent some thread about torture without due process just posting 9-11 victims' personal information.

  • Bob from Ohio||

    "I'm against killing, period. "

    Except for unborn children.

    Get off your high horse. Wanting murderers to pay the appropriate price has nothing to do with "bestial nature".

  • Sarcastr0||

    You don't just want it, you wallow in it happening and damn the rules.

    You stand out on this issue even among fellow DP supporters. Do you disagree?

  • Michael Ejercito||

    So what should have been done to Dominique Ray?

  • bevis the lumberjack||

    "So what should have been done to Dominique Ray?"

    I've made no comment as to Ray's execution. I'm generally against the death penalty because the government fucks things up all the time and I don't want any innocent people executed, but I have no reason to think that Ray was innocent.

    What should have been done with Ray is that he should have been provided equal access to his own religious figure in the death chamber relative to what a Protestant Christian would receive. It's not that hard. If equal access for everyone = no access for everyone, that's fine too. But it should be the same for everybody.

  • Bob from Ohio||

    "So what should have been done to Dominique Ray?"

    Hung in 1996 or 1997.

  • NToJ||

    Pre-conviction execution is a bad idea.

  • Alpheus W Drinkwater||

    It could be about as accurate as post-conviction execution, in terms of guilt or innocence.

  • JonFrum||

    " This policy probably stems from some dubious reasons, such as a mistrust of the death penalty defense bar ..."

    Distrust the death penalty bar? Oh, I'm clutching my pearls!

    An honorable tribe, no doubt. I'm sure they'd see their clients put down like dogs rather than stretch any rules.

  • ||

    Islam is a caustic blend of regurgitated paganism and twisted Bible stories. Muhammad, its lone prophet, conceived his religion solely to satiate his lust for power, sex, and money. He was a terrorist. The depiction of the prophet by the most revered Muslim sources reveals behavior that is immoral, criminal, and violent. The five oldest and most trusted Islamic sources don't portray Muhammad as a great and godly man. They confirm that he was a thief, liar, assassin, mass murderer, terrorist, warmonger, and an unrestrained sexual pervert engaged in pedophilia, incest, and rape. He authorized deception, assassinations, torture, slavery, and genocide. He was a pirate, not a prophet.

  • mad_kalak||

    What what you say is mostly true, it doesn't have much bearing on the facts of the case in front of us.

  • Chem_Geek||

    Everything you wrote there is wrong. Literally everything.

  • mad_kalak||

    I'm just going to pick out one example (the one usually thrown out there as the most controversial) and ask you Chem to show how it was wrong.

    Muhammad married Ayesha her when she was six years old and he consummated his marriage when she was nine years old, and then she remained with him for nine years until his death. How is that not pedophilia?

  • Sarcastr0||

    Were all Bedouins at the time pedophiles, m_k?

  • mad_kalak||

    Did I ask that, Sarc?

    Look, I understand the dangers of judging history by modern standards. In Rome, Augustus made a law that banned child prostitutes, to speak to a similar topic. That doesn't make it *not* pedophilia.

    So, when Chem says everything was literally untrue, and it is literally true that Mohammed was f*cking a 9 year old (and likely making her do other things since she was that is literally pedophilia) I'm showing that Chem was wrong.

  • Sarcastr0||

    I'll leave it to Chem to defend Chem, though I agree with him that AltRightWing is being his usual hateful self, and facts clearly came very secondary

    To talk about your particular point about pedophilia, your pedantic prescriptivism is correct, but at the expense of condemning just about the entire ancient world in the same breath. Which is, as you noted, silly.
    If you want to have an dumb argument to win debating points, fine. If you want to defend Alty's post, you'll have to do better than damning with 'well, technically...'

  • Bob from Ohio||

    "'well, technically...'"

    What do you have against the best argument?

  • Sarcastr0||

  • mad_kalak||

    Sarc, I know what you were trying to bait me into, that child marriage was a common thing, thus was pedophilia. You're correct, to an extent, in that "child" in our modern definition of a person under 18, however, that was not the case in the ancient world. Moreover, everyone got married younger then because not everyone lived as long, and it was with rare exception always after sexual maturity. Don't tell me Mohammed's child bride was sexually mature at 9, or at six, when I'm sure he was taking certain liberties with her. So yea, pedophilia, even by ancient standards.

    Examine the origin of the world's five major religions; Mohammedanism, Christianity, Hinduism, Buddhism, and Judaism. Only one of these was founded as a way for the founder to gain access to women to slake his lust, and was spread on pain of death to the conquered. And Mohammed, compared to Buddha or Christ, was a violent warmonger.

    Yes, yes, not all Christians are Christ-like. But ask yourself, would the world be a better place if more people were Christ-like, or Mohammed-like. I think we already know the answer of what happens (ISIS) when more people are Mohammed-like.

  • Sarcastr0||

    Moreover, everyone got married younger then because not everyone lived as long, and it was with rare exception always after sexual maturity.
    Um, where did you get that from? That wasn't even true in Europe, much less Asia.

    Only one of these was founded as a way for the founder to gain access to women to slake his lust, and was spread on pain of death to the conquered.
    Haven't read the Old Testament lately, eh? 'My founder is nicer than you founder' is a dumb argument.

    Your facts...where are you getting them? Because I'm no scholar, but even to my dilettante's eye it looks like you're just making things up based on barely heard conventional wisdom.

    And I won't touch your 'Muhammad was basically ISIS' postulate; it's too dumb to even be wrong.

  • mad_kalak||

    ISIS was basically Mohammedanism as practiced at its outset, sorry if that is uncomfortable for you to hear. It's is Muslim fundamentalism, sex slavery and all.

    Ancient Rome kept extensive records, and by law, someone wasn't eligible for marriage until age 14. Don't ask me about prehistoric Polynesia, and using one extreme example to try to disprove the average doesn't work here. I note you don't have evidence to disprove my claim, you just say that you don't know where I got my evidence, as if in a blog comment I'm going to provide a bibliography. Hell, just look at Wikipedia for "marriagable age" and you'll see I'm right.

    It may be a dumb argument that "my founder was nicer than yours" But I wasn't making that argument. I was asking you a very specific question, do you think if more people in the world were Christ-like vs Mohammed-like, which would make the world a better place. Are you capable of answering?

  • Sarcastr0||

    ISIS was basically Mohammedanism as practiced at its outset, sorry if that is uncomfortable for you to hear.

    ISIS an apocalyptic cult. Early Islam was many things, but not that. Source things or stop making them up.

    Ancient Rome is fine and all, but what about Asia or English royal families in the dark ages? Check into it - you might be surprised!

    I will not answer your question until you explain to me the utility in asking it. Seems to me just like a lame attempt to attack Islam, which even you admit would be deceitful if used that way.

  • mad_kalak||

    Mohammedanism as practiced by its founder was a death cult by our modern definitions. Die while engaged in jihad and get 72 virgins was not an ISIS theological invention. Any number of quotes from the quaran support the violent nature of the religion and how sex slavery of unbelivers is desirable. Anyway, why are you asking for an source for an statement of value?

    Those marriages for royal families that you reference were not consummated by an older man with a 9 year old. Again, you're trying to take an extreme example, not even applicable in this case, to try to disprove the norm, like a reverse ecological fallacy. Since you're hot on asking for sources, let me ask you, then, to provide one for the child marriage and pedophilia you say was common in Asia?

    I don't expect you to answer the question publicly, never did. No one does when put on the spot. But answer to yourself. Mohammed himself spread his religion by fire and blade, and preached death to all Jews. Yes, Christians were not peaceful at time. But the Christ of the Bible was one who would not kill and rape to spread his religion, and preached forgiveness and tolerance (perhaps to a fault).

    Would the world be a better place if more people were tolerant and forgiving, or warlike and used the prospect of sex slaves to reward devoted followers who killed in his name?

  • mad_kalak||

    Have a good weekend. I won't be commenting again on this thread.

  • NToJ||

    "...do you think if more people in the world were Christ-like vs Mohammed-like, which would make the world a better place."

    Yes, let's compare an imaginary person to an actual historical figure and see who comes out more favorably. Great argument. I think the world would be a better place if people were more like Santa.

  • NToJ||

    "...when I'm sure he was taking certain liberties with her."

    Why are you so sure?

  • NToJ||

    How old was Mary when Joseph married her? How old when the god impregnated her?

  • Jimmy the Dane||

    Seeing God is omnipotent he can do whatever he wants whenever he wants. That is what is means to be God.

  • Jimmy the Dane||

    I would file this under manufactured controversy. Here we are literally talking about the distance of several steps. I don't think the fact the iman was going to have to just be a witness and not in the actual execution chamber was a state secret. (By "secret" protocols that just means confidential and privileged to those with a right to know. The reason to use "secret" is a concocted term by defense attorneys to make the nature of information sound more insidious because what they want to do is get a hold of it then leak it in order to make a public spectacle of the process).

    A convicted murderer (an individual with diminished constitutional rights) can have the religious counselor of their choosing up until the actual moment of execution I don't see how that is an establishment clause issue at all. Well, I don't see it because it actually isn't one at all.

    And, from what colleagues who have done death penalty cases before tell me, prison officials offer to walk someone through what the process will entail at least 30 days before execution all with counsel present. That way there are no "surprises" for anyone. It might not be fun to have to sit through and listen to the details of your own execution (and then contemplate them for what might be many days) but if you want to know what is going to happen that is what you must do. I find it hard to believe that no one on the defense side knew the SOP of the prison and it was a last minute "surprise".

  • Sarcastr0||

    Read Kagans' dissent. What your colleagues tell you does not appear to be what happened here.

    Regardless of the individualized facts of the case, this looks a lot like a state endorsing a particular religion, and the SCOTUS going 'this is a clever one - okay, you scamp.'

  • Jimmy the Dane||

    I did read the dissent and am still not buying it. The fact the chaplain is a member of the execution team AND happens to be Christian is not establishment. Nothing says that the state has to qualify every religion under the sun as part of the execution team in order to have a spiritual advisor on it. Especially taking into account that the murderer here was provided with a spiritual advisor of his choice that had the opportunity to escort him to literally steps away from the execution chamber. If any accommodation is due I think that satisfies any constitutional requirement.

    Also, there is a real security threat to just letting anyone into such a secure environment where meticulous protocols are followed. Say the iman decides to make a political stunt of it all and damages the equipment or even tries to intervene to stop the execution. Sure his actions might be mitigated in a few dozen seconds while the rest of the team restrains him, but that would be enough to delay or perhaps indefinitely put off executions while machinery is examined, protocols are reviewed, plus the mental impact being wheeled into the execution chamber only to have it called off due to those action would have not only on the convict but those who undertake this action.

    This is manufactured controversy. That is all.

  • bevis the lumberjack||

    "The fact the chaplain is a member of the execution team AND happens to be Christian is not establishment."

    How does the functionality of the execution team improve because the chaplain is there? How would the functionality of the execution team be impaired if clergy from a different religion was there?

  • Jimmy the Dane||

    How does it improve the process?

    I would speculate that the presence of a spiritual advisor may calm the person who is facing execution. (I would also note that there is no requirement that the chaplain be present. I take it that if requested he would not be in the room.)

    How would the functionality be impaired? I already address that above in that having a random person is a security concern along with that execution protocols are extremely detailed and those rooms are small (I have seen them but never an execution). Having someone just "hanging around" would impair the precise execution of those protocols and I think that the security risk is more then speculative. Especially given the nature of liberal activists who think that breaking the law is doing the "greater good" and is therefore excusable in both a moral and legal sense.

  • SykesFive||

    The parenthetical in your second paragraph appears to be incorrect at least pre-litigation.

    The warden had initially told the prisoner that the chaplain's presence in the death chamber was a mandatory part of the execution procedure. The prisoner objected but the warden refused to accommodate the request, so as things stood before the prisoner filed suit, the chaplain was going to be in the death chamber despite the prisoner's objection.

    The accommodation was made in the state's response to the prisoner's complaint in the district court, so that issue was taken off the table. But it was certainly there before hand.

    It is a bit strange that the warden had insisted on the chaplain's presence. Perhaps it was just force of habit: it says in the book that the chaplain goes in, so the chaplain goes in. There may also be some details that have not been revealed. It is possible that the chaplain plays some role in facilitating the execution procedure besides providing spiritual support to the prisoner, such as calming or even restraining him.

  • Jimmy the Dane||

    I suspect in the eyes of the death penalty defense counsel any answer the warden gave would be "wrong". If the warden said "fine there will be no chaplain" instead of making a religious liberty/establishment claim I suspect they would have gone for a due process one (theory being protocol should be uniformly enforced or something similar). I imagine it was "damned if you do, damned if you don't" kind of scenario.

    Also, it is worth mentioning that the warden may not have had any administrative discretion. Not all executive officials who oversee policy have discretion. In fact some with ministerial authority specifically do NOT have discretion over how their duties are administered. Presumably the policy was promulgated under authority of a governor level appointment so any discretion might have rested with that authority or if not specifically provided for in law/regulation/policy maybe inherently in the governor himself. So the answer "the book says we do it this way so that is the way we are going to do it" might have been proper.

  • Sarcastr0||

    I suspect
    I imagine
    may
    Presumably
    might have been

    Lots of those in favor of this process leaning hard on supposition.

  • bevis the lumberjack||

    "I would speculate that the presence of a spiritual advisor may calm the person who is facing execution."

    I doubt his presence last night was very calming to Domineque.

    " Having someone just "hanging around" would impair the precise execution of those protocols and I think that the security risk is more then speculative. Especially given the nature of liberal activists who think that breaking the law is doing the "greater good" and is therefore excusable in both a moral and legal sense."

    It wouldn't be an extra person just hanging around. It would be a single clergy from some faith, just like it is when the employee chaplain is there. And it's funny that you said that the security risk is more than speculative, then immediately proceeded to speculate.

    Seems like Alabama has two choices here - they can find a rabbi, a priest, and an imam to vet and train to be on call for the occasional execution in addition to their Protestant chaplain(which doesn't seem terribly burdensome), or they can simply say that no cleric is to be in the execution chamber period. To do what they did is bullshit. And the SC - particularly when they've recently decided several cases in favor of plaintiffs in religious freedom cases (and I think correctly) - to decline to take this shows a double standard.

  • Toranth||

    they can find a rabbi, a priest, and an imam to vet and train to be on call for the occasional execution in addition to their Protestant chaplain (which doesn't seem terribly burdensome)

    Emphasis mine.
    Here's the problem: There are MANY sects of each of those religious groups, many of which dislike the others (to the point of violence). Finding an acceptable priest for any potential prisoner request is a massive burden - do you think a Presbyterian would find a Mormon acceptable? Or a Shia accept a Bahai?

  • David Nieporent||

    . (I would also note that there is no requirement that the chaplain be present. I take it that if requested he would not be in the room.)

    I would note that -- as evidenced by this post and your others here and in other threads -- you don't know what the hell you're talking about. There was indeed a requirement that the chaplain be present. In response to Ray's suit they waived that requirement.

    (That's correct: before Ray's suit their policy wasn't even "You get a protestant chaplain or nobody." It was "You get a protestant chaplain and you'll like it.")

  • Gasman||

    "How would the functionality of the execution team be impaired if clergy from a different religion was there?"
    A non-state actor could use the opportunity to create havoc through their speech and actions, played for the benefit of the witnesses on the other side of the glass, rather than entirely present for the condemned.

  • Jimmy the Dane||

    Yes I made that point above but others seemed to have conveniently missed it or are outright ignoring it since you know facts that don't follow the narrative are inconvenient. I think the security threat is far from merely speculative. Also, "getting in the way" of properly following protocols (which are designed to be followed to the "t" to limit missteps, mistakes, protect staff and the prisoner, and also mitigate any potential of pain or suffering) is a real consideration too. The dissent conveniently leaves this out of its analysis.

    Say even if having an untrained iman in the room was "de minimus" and the protocol was botched though just saying for the sake of argument a stint was placed incorrectly. And the result was failure to properly administer a drug resulting in having to cancel the execution. Well then you have a pickle of a situation and one death penalty counsel would love to have in that it makes for a lot of great constitutional arguments that could negate the death penalty sentence or at least delay it for a long time at it goes up through the courts.

  • Sarcastr0||

    That's an improbable scenario. And one to which having a dedicated religious officer vastly oversolves.

  • Jimmy the Dane||

    I don't think a random person in the tight confines of an execution chamber who is not trained nor vetted to be and something going wrong being an "improbable scenario".

    And if the standard (as is suggested herein) is that we err on the side of caution when it comes to the death penalty you would think that would also apply to the administration of the actual sentence.

  • David Nieporent||

    . The fact the chaplain is a member of the execution team AND happens to be Christian is not establishment.

    "Happens to be." You are arguing in bad faith.

    Also, there is a real security threat to just letting anyone into such a secure environment where meticulous protocols are followed.

    "Anyone." Yes, because they were going to throw darts at a local phone book to pick someone to be there. As opposed to the imam who regularly goes to the prison to minister to prisoners and has already been cleared. And who of course goes through the same security screening as anyone else, obviating any security threat.

    Say the iman decides to make a political stunt of it all and damages the equipment or even tries to intervene to stop the execution.

    Say the protestant chaplain does that. Or a prison guard. Or the executioner. I guess the only way to avoid this imaginary threat is to not let anyone in the room at all.

  • Jimmy the Dane||

    Let me guess David, going out on a branch here too, you were not captain of the debate team, right?

  • Alpheus W Drinkwater||

    "You are arguing in bad faith."

    What? In the comments on this blog? No way.

  • David Nieporent||

    I don't think the fact the iman was going to have to just be a witness and not in the actual execution chamber was a state secret. (By "secret" protocols that just means confidential and privileged to those with a right to know.

    I'm sure there's a metaphysical distinction between secret and confidential, but I don't know the relevance here.

    A convicted murderer (an individual with diminished constitutional rights) can have the religious counselor of their choosing up until the actual moment of execution I don't see how that is an establishment clause issue at all.

    Um, the state's policy (up until a few days ago) was that you can have your religious counselor up until you get into the actual execution room, at which point that right becomes limited to protestants; everyone else's religious counselor is sent into another room. Moreover, the state's policy was that once you got into that room you got the protestant counselor whether you wanted him or not. If you can't see the establishment clause issue, it's because you're blind, dumb, or pretending not to.

    I find it hard to believe that no one on the defense side knew the SOP of the prison and it was a last minute "surprise".

    Your argument from incredulity is lacking in anything other than speculation; moreover, for most people it wouldn't have been an issue so most would have had no reason to know about the bizarre rule.

  • bevis the lumberjack||

    This is such an easy fix - either hire and train a couple of extra ministers of other faiths, or just say that no chaplain of any faith will be allowed in the execution chamber itself, either would work - that the government (in this case Alabama and the Supremes) declining to do the fix is nothing but a "fuck you, we don't want to" to the general public. This isn't complicated at all.

    And I don't understand how so many people on here are so resistant to this. The resistance has to be rooted in either "fuck those guys, they killed somebody" or "fuck those guys, they're Muslims".

  • Jimmy the Dane||

    You sound more like Butthead than Bevis...

  • Alpheus W Drinkwater||

    And you sound like someone without an answer to his points.

  • Toranth||

    His point is absurd, based on ignorance of religious beliefs.

    You can't just a have a "couple of extra ministers". There are hundreds of Protestant groups in the US alone, and they are not interchangeable. Either you need to allow all, or none. All is not practical, so none it should be.

    Making a comment like that is just another example of "they all look alike to me".

  • Alpheus W Drinkwater||

    Yes, but I'm guessing there isn't a death row inmate in Alabama practicing each of those different Protestant groups. Since it takes years to execute an inmate, the state would have plenty of time to screen and train a minister of the appropriate faith. Or if they don't want to do that, they could exclude all chaplains, which was B the L's second option. I don't see what is absurd about that.

  • Lee Moore||

    Since it takes years to execute an inmate, the state would have plenty of time to screen and train a minister of the appropriate faith.

    At taxpayer's expense, no doubt. How long do you envisage the training taking ? And who decides whether the minister has absorbed his training adequately ? I don't think we can let the state decide, oh Lordy no. The courts obviously need to be able to review any difference of opinion between the state and the inmate's lawyers on that one.

    But what would happen if the trained minister died, or was sick, or retired, or lost his faith ? That's OK, the state can train a new one and put off the execution until that's done. Unless....maybe the state should train three ministers to be on the safe side.

    Oh wait, what if the inmate changed his faith ? Or maybe he might be a heathen, right up till impending death made him realise it was time to acknowlefge the Lord.

    The whole idea is not merely ridiculous, but is transparently designed to be ridiculous. And expensively ridiculous.

  • David Nieporent||

    How long do you envisage the training taking ?

    An hour?

  • Jimmy the Dane||

    I think you are blind, dumb, or just pretend if you think having the mere presence of a Christian advisor violates the Establishment Clause.

    And even if it did how would you argue simply leaving out the Christian Chaplin is not a reasonable accommodation? (Hint - you really can't without just arguing in bad faith).

    You also ignore the fact that the warden may not have had any discretion here. Although the accommodation was not made until after the suit was filed that does not mean it did not trigger a decision of someone who had discretion.

    But what are facts and things to those who just want to blindly followed the narrative. Inconvenient truths is what they are so why not just ignore them then? Seems to work, right?

  • Alpheus W Drinkwater||

    No one is arguing that the presence of a Christian advisor violates the Establishment clause. They are arguing that excluding the Moslem advisor does.

  • David Nieporent||

    No one is arguing that the presence of a Christian advisor violates the Establishment clause.

    I dunno; the government hiring a protestant chaplain for the purpose of praying with prisoners certainly sounds constitutionally questionable to me.

    They are arguing that excluding the Moslem advisor does.

    Yes, this. And the defense of "Well, we put the protestant on our payroll, so that's different" is completely pretextual and sophistic.

  • David Nieporent||

    I think you are blind, dumb, or just pretend if you think having the mere presence of a Christian advisor violates the Establishment Clause.

    Setting aside the "I know you are but what am I?" nature of your comment, of course I don't think that. It's the fact that the government hired a religious figure for the purpose of praying with inmates -- not that they allowed him to be there -- that presents the first Establishment Clause issue; that they allowed a protestant and only a protestant presents the second Establishment Clause issue.

  • David Nieporent||

    And even if it did how would you argue simply leaving out the Christian Chaplin is not a reasonable accommodation?

    Quoting the 11th Circuit: "This rationale misapprehends the nature of Ray's Establishment Clause claim. Waiving the presence of the Christian Chaplain, while still refusing admission to Ray's Imam has provided Ray with only half of the relief he seeks; it does nothing to alleviate the core Establishment Clause problem. If Ray were a Christian, he would have a profound benefit; because he is a Muslim, he is denied that benefit."

    Now, Alabama's subsequent proposal, of saying "From now on, no chaplains of any sort in the execution room for anyone" solves the religious discrimination aspect of the problem; it does not, however, address the RLUIPA issue. (And it's sort of remiscent of the response of Alabama and its fellow southern states to desegregation rulings: we're going to close our pools, etc.; we'd rather not provide these public services to anyone than to actually provide them on a non-discriminatory basis.)

  • David Nieporent||

    You also ignore the fact that the warden may not have had any discretion here.

    You are again making up facts, plus this is irrelevant. The suit was against the ADOC, which could've granted his request.

  • SykesFive||

    I think the Supreme Court should have stayed the execution and affirmed the court of appeals, resulting in a remand to the district court to reach the merits.

    The district court's finding on timeliness is facially implausible. In any case, if it takes upwards of 20 years to go from offense to execution, another couple of months is hardly significant.

    The state wisely backed off its position that the chaplain must be present for the execution.

    The state would also do well to eliminate any policy that appears to grant prisoners a right to be accompanied by a religious figure of their choosing during execution. A crafty prisoner would find a death-penalty abolitionist sect. No member of that sect's clergy would attend the execution, so no execution, right?

  • Brett Bellmore||

    Nope, wouldn't work that way: He could have the right to ask the clergy to attend, but so long as the prison didn't try to prevent it, the clergy's refusal to attend wouldn't mean anything.

    Kind of like a right to marry isn't violated when Denise Milani turns down your proposal.

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