The Volokh Conspiracy

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Death Penalty

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.)