Dead Wrong: Texas Tests the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act by Banning Spiritual Advisors from Execution Chambers

69 Am. U. L. Rev. F. 125 (2020).

* Junior Staff Member, American University Law Review, Volume 69; J.D. Candidate, May 2021, American University Washington College of Law; B.A. Law and Society, 2018, American University. I would like to thank the entire Law Review staff for their valuable assistance in preparing this piece for publication. I would also like to thank Sister Ann Regan and Professor Robert Johnson, who were instrumental in exposing me to the injustices on death row and teaching me the importance of advocating for the rights, and more importantly, the human dignity of every person. Finally, I would like to thank my family and Nicholas. Only because of their steadfast support and unconditional love have I had the opportunity to learn and advocate.

Freedom of religion was considered one of the most fundamental rights during the founding of the United States. Recently, states have expanded this freedom in numerous areas, but Texas is limiting this paramount freedom among its condemned inmates. Originally, Texas permitted only Christian and Muslim inmates to be accompanied into the execution chambers by their spiritual advisors. However, when Patrick Murphy, a Buddhist inmate, challenged Texas’s policy a few weeks before his execution date in March, the Supreme Court stayed his execution because the policy of accommodating inmates of just two religions violated the Establishment Clause. In response, the Texas Department of Criminal Justice altered its policy to prohibit all spiritual advisors from accompanying inmates into the execution chambers. This new policy violates the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act. Consequently, Texas should revise its policy again to permit spiritual advisors to accompany all religious inmates into the chambers during their executions.

Introduction

On Christmas Eve in 2000, a gang of seven escaped convicts in Texas brutally murdered Officer Aubrey Hawkins.¹ About a month later, when authorities attempted to apprehend the gang, one of the suspects committed suicide while officers successfully detained the other six men.² Texas eventually tried, convicted, and sentenced all six men to death for murdering Hawkins.³ Since then, the Texas Department of Criminal Justice (“the Department” or TDCJ) has executed four of the gang members while two remain on death row.⁴ The Department planned to execute one of the remaining death row detainees, Patrick Henry Murphy Jr., on March 28, 2019.⁵ However, the Supreme Court stayed Murphy’s execution the night it was scheduled to occur because the Department refused to allow Murphy’s Buddhist spiritual advisor into the execution chambers to accompany him during the lethal injection.⁶ Leading up to Murphy’s execution, the Department had a strict spiritual advisor policy that only allowed Christian or Muslim clerics employed by the state to accompany inmates during their executions.⁷ This issue has reignited a popular debate forcing Americans to grapple with an uncomfortable question: what rights, if any, should condemned murderers maintain throughout their incarceration and up until their last breath?

Consequently, Murphy’s case has forced prison administrations across the United States to debate the necessity of allowing spiritual advisors into execution chambers, and more importantly, whether there are constitutional liberties that protect condemned inmates’ access to spiritual advisors during their executions.⁸ For instance, less than a week after the Supreme Court stayed Murphy’s execution because it decided Texas’s policy violated the Establishment Clause,⁹ the Texas Department of Criminal Justice announced a new execution policy banning all spiritual advisors from accompanying condemned inmates in the execution chambers during their executions.¹⁰ Although Justice Kavanaugh’s one-man concurrence in Murphy v. Collier¹¹ seemed to endorse Texas’s new all or nothing approach,¹² the majority opinion held that Texas may not carry out Murphy’s execution “unless [Texas] 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.”¹³ In addition to challenging the Supreme Court’s majority opinion, the Department’s new policy also directly conflicts with the Free Exercise Clause of the United States Constitution¹⁴ and the Religious Land Use and Institutionalized Persons Act¹⁵ (RLUIPA) of 2000.¹⁶

This Comment argues that Texas’s policy banning spiritual advisors from accompanying condemned inmates in the execution chambers is unconstitutional because it violates the First Amendment and RLUIPA. First, Texas’s policy violates the Free Exercise Clause under the test articulated in Turner v. Safley¹⁷ because it is not reasonably related to a legitimate penological objective, and the Department could easily implement other procedural safeguards to ensure sufficient security during executions.¹⁸ Second, Texas’s new policy similarly violates RLUIPA under the test articulated in Cutter v. Wilkinson¹⁹ because it imposes a substantial burden on the religious exercise of a person confined to an institution but does not further a compelling governmental interest by the least restrictive means.²⁰ Part I provides a factual background on the Department’s new policy, the Turner test, and the Cutter test, laying the foundation for the analysis under which the Supreme Court examines alleged constitutional and statutory violations. Part II applies Texas’s new policy to the Turner test and the Cutter test to analyze the constitutional and statutory violations that the policy presents. Finally, Part III concludes that Texas’s new policy banning spiritual advisors from accompanying condemned inmates during their executions fails the Supreme Court’s Turner and Cutter tests and therefore violates the Free Exercise Clause of the First Amendment and RLUIPA. Part III also suggests alternative procedural safeguards and less restrictive means of executing religious inmates to further illustrate that Texas’s new policy is unconstitutional. Accordingly, the Texas Department of Criminal Justice must revise its policy to permit religious inmates facing the death penalty to be accompanied by a spiritual advisor from their genuinely practiced religion during their executions.

I. Background

Upholding inmates’ constitutional rights within correctional facilities has long been an issue for correctional officers in the United States.²¹ Because of this history of constitutional violations within correctional facilities, the Supreme Court previously fashioned tests to evaluate whether a correctional institution policy violates the Constitution or other federal statutes.²² In Turner, the Supreme Court established a test to evaluate whether a Missouri correctional facility violated inmates’ First Amendment rights.²³ Later, the Supreme Court developed the Cutter test to analyze whether an Ohio correctional facility violated inmates’ rights under RLUIPA.²⁴ Understanding these tests will later help demonstrate that Texas’s new policy banning spiritual advisors from accompanying condemned inmates during their executions violates their constitutional rights under the First Amendment and RLUIPA.²⁵

A. The Supreme Court Granted Murphy’s Petition for a Stay of Execution

The difficulty of balancing correctional facility security with constitutional liberties recently resurfaced when the TDCJ to execute Patrick Murphy, a Buddhist inmate, without the presence of his Buddhist spiritual advisor.²⁶ Murphy originally argued that he needed a Buddhist spiritual advisor in the execution chambers during the execution to help him “focus his thoughts on Buddha at the time of his death so [Murphy] could be reborn in the Pure Land.”²⁷ Lower state and federal courts denied Murphy’s Establishment Clause argument and rejected Murphy’s appeal on the basis that he filed his petition for a stay of execution too late.²⁸ However, the Supreme Court ultimately granted Murphy’s petition for a stay of execution.²⁹ The majority merely provided a two-sentence opinion granting his stay of execution and instructing the Department not to execute him without a Buddhist spiritual advisor accompanying him in the execution chambers.³⁰

However, Justice Kavanaugh authored a one-man concurring opinion suggesting that Texas could rectify its procedure by allowing spiritual advisors of all religions into the execution chambers or only permitting spiritual advisors in the viewing room.³¹ Justice Kavanaugh also took the opportunity to emphasize the “operational and security issues associated with an execution by lethal injection.”³²

A Texas Department of Criminal Justice spokesperson responded to the ruling by saying the prison’s legal teams would review the Supreme Court’s decision then decide what impact it could have on Texas policy.³³ Texas did not hesitate in responding to the ruling or Justice Kavanaugh’s suggestion.³⁴

B. Texas’s Response to the Supreme Court Granting Murphy’s Petition for Stay of Execution

Just five days after the Supreme Court granted Murphy a stay of execution, Texas released a new spiritual advisor policy.³⁵ Texas, attempting to address the previous Establishment Clause issue, now prohibits all spiritual advisors from accompanying condemned inmates into the execution chambers during their executions.³⁶ Justice Kavanaugh suggested that the new policy likely complies with RLUIPA because Texas has a compelling interest in securing its execution chambers.³⁷ However, Justice Kavanaugh failed to acknowledge whether the new policy would be a substantial burden on condemned inmates’ right to Free Exercise or whether it would be the least restrictive means of ensuring there are no security breaches within the execution chambers.³⁸

In response to Texas’s new spiritual advisor policy, Murphy’s attorney, David Dow, said he found it especially surprising that Texas state officials were exhibiting such “hostility” toward religion “even if those religious people happen to be on death row.”³⁹ The updated policy permits spiritual advisors to meet with the condemned inmate leading up to their execution, but only allows them to observe the execution from a witness viewing room.⁴⁰ Dow alleged that the new TDCJ policy does not actually comply with Justice Kavanaugh’s concurrence.⁴¹ Dow maintained that Texas ignored Justice Kavanaugh’s concerns about targeting religion generally, and focused only on treating Buddhist inmates the same as Christian and Muslim inmates, thus eliminating all spiritual advisors from execution chambers.⁴² Dow even went so far as to call the new policy “arbitrary” and “unguided,” and urged that it could lead to even more unequal treatment.⁴³ Meanwhile, the Department has failed to publish an updated execution policy since 2017.⁴⁴

C. The Free Exercise Clause

The Free Exercise Clause protects religious freedom by prohibiting laws that “unduly suppress” citizens’ right to freely exercise their religion.⁴⁵ Originally, the Clause only applied to the federal government.⁴⁶ However, in 1940, the Supreme Court held that it is also enforceable against state and local governments under the auspices of the Fourteenth Amendment.⁴⁷ As a result, state-owned prisons are bound by the Free Exercise Clause and are therefore constitutionally required not to inhibit inmates from freely exercising their religion.⁴⁸ Nonetheless, state and federal prisons have continuously limited inmates’ First Amendment rights to freely exercise their religion.⁴⁹ Historically, courts have permitted these limitations so long as they were linked to maintaining security within the correctional facilities.⁵⁰ While prisons obviously have a compelling interest to ensure proper security within their facilities, courts frequently use the Turner test to protect inmates from alleged First Amendment violations that result from security-based policies.⁵¹

1. Turner’s reasonableness test

Turner arose when inmates filed a class action suit against Missouri Division of Corrections after it implemented new regulations at the Renz Correctional Institution (“Renz”) in Cedar City, Missouri.⁵² Two inmates in the class, Leonard Safley and P.J. Watson, sought an injunction and damages that they claimed resulted from the regulations.⁵³ The two met at Renz, which housed both male and female inmates.⁵⁴ Safley and Watson later became romantically involved.⁵⁵ Then, because of an incident stemming from the relationship, the Missouri Division of Corrections transferred Safley to Ozark Correctional Center.⁵⁶ Around the time of his transfer, the Missouri Division of Corrections implemented its new regulations.⁵⁷

The first regulation sought to limit inmate-to-inmate correspondence between different institutions unless the inmates were immediate family members or they were writing about related legal matters.⁵⁸ Therefore, this regulation effectively prohibited Safley and Watson from communicating with each other from their separate facilities.⁵⁹ Safley and Watson even tried to communicate through family members and friends, but any of the letters addressed to Watson that mentioned Safley were returned to the senders.⁶⁰ The second regulation forbade inmates from marrying unless they obtained their prison superintendent’s permission, which was based on “compelling reasons.”⁶¹ The Missouri Division of Corrections did not define “compelling” when implementing its regulation, but Renz prison officials testified that usually only pregnancy or the birth of a child out of wedlock was thought to be a compelling reason.⁶² As a result, Renz inmates were often denied the right to marry other inmates or outside citizens.⁶³

The district court found that the Renz employees had threatened inmates who attempted to continue to exercise their right to marry or correspond with the loss of parole or parole privileges.⁶⁴ It also found that correctional officers threatened inmates with loss of child custody if they attempted to marry.⁶⁵ The court even found instances of correctional officers harassing or threatening inmates if the inmates pursued grievances after they were unable to express their right to marry or correspond.⁶⁶ Lastly, inmates in general worried that testifying about these issues would subject them to retaliation or harassment by Renz employees.⁶⁷ This prohibition on marriage further prevented inmates at separate facilities from corresponding because inmates were only allowed to correspond with other inmates if they were family.⁶⁸

After both the district court and the Eighth Circuit decided that the two regulations were unconstitutional under a strict scrutiny standard, appellant Superintendent Turner appealed to the Supreme Court.⁶⁹ Noting “prison walls do not form a barrier separating prison inmates from the protections of the Constitution,” the Supreme Court granted certiorari to address the regulations directly.⁷⁰ In analyzing Renz’s regulations, the Court created a new test to determine whether “a prison regulation that burden[ed] fundamental rights [was] ‘reasonably related’ to legitimate penological objectives, or whether it represent[ed] an ‘exaggerated response’ to those concerns.”⁷¹ The Court presented several factors to evaluate the reasonableness of a prison regulation: (1) whether there is a valid, rational connection between the regulation and the governmental interest; (2) whether the governmental objective is legitimate and neutral; (3) the potential impact of a possible accommodation; and (4) the absence of ready alternatives.⁷² Both in Turner and in subsequent cases, the Supreme Court applied these four prongs to attempt to balance inmates’ constitutional rights with legitimate penological interests.⁷³

a. Valid, rational connection

The Court in Turner explained that a prison regulation must have a valid and rational connection to a legitimate governmental objective.⁷⁴ This means that a court should only authorize a regulation that limits a constitutional right if the connection between the regulation and the asserted goal is not “so remote as to render the policy arbitrary or irrational.”⁷⁵ For example, in Jones v. North Carolina Prisoners’ Labor Union, Inc.,⁷⁶ the Supreme Court decided that prohibiting the group activities of a prison union, which included inmate solicitation and group meetings, was “rationally related to the reasonable, indeed to the central, objectives of prison administration.”⁷⁷ In Jones, the Court found that the governmental objective, maintaining control of the facility, was justified by the administrations’ belief that the existence of a union constituted a “threat of essential discipline and control” because inmates could use the unions to cause work slowdowns or stoppages.⁷⁸ Therefore, the Court held that the governmental objective outweighed the inmates’ First Amendment rights.⁷⁹

The Supreme Court also found a rational connection between a regulation and a penological interest in Bell v. Wolfish.⁸⁰ In Bell, the Court ruled that inmates could only purchase or receive hardback books that were mailed directly from publishers, book clubs, or bookstores.⁸¹ The Court upheld the Bell prison regulation because it had a rational and valid connection to a serious security problem: inmates’ outside associates hiding contraband in used books, then mailing the books to the inmates so they could smuggle contraband into the facility.⁸² Since the prison was able to show that inmates were indeed using the books to smuggle in and conceal contraband, “there [was] simply no evidence . . . that MCC officials [had] exaggerated their response to [the] security problem.”⁸³

In Turner, the Court decided that restricting communication between inmates at different facilities was not arbitrary or irrational because prison officials testified that inter-institution communications would allow inmates to create escape plans or to arrange assaults, which threatened the prison’s security.⁸⁴ In attempting to justify the marriage restriction, Renz officials alleged that the regulation would enhance security by preventing inmate “love triangles” and would promote its efforts to rehabilitate female inmates.⁸⁵ The Supreme Court suggested that love triangles might still form regardless of formal marriage ceremonies, implying that Renz’s marriage regulation was an exaggerated response to a penal issue.⁸⁶

b. Governmental objective

When analyzing Turner, the Supreme Court further explained that a prison regulation must also have a legitimate and neutral governmental objective.⁸⁷ In the face of First Amendment challenges, the Court must analyze issues “in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law.”⁸⁸ The Court further defined “neutral” as disregarding the content of the expression the regulation seeks to suppress.⁸⁹

The Court also examined neutral governmental objectives in Pell v. Procunier.⁹⁰ In Pell, four California inmates and three professional journalists brought suit in response to a California Department of Corrections policy, which prohibited inmates from attending in-person interviews with the press.⁹¹ The petitioners claimed that the regulation violated free speech and freedom of press, both of which were guaranteed by the First and Fourteenth Amendments.⁹² In response, the Supreme Court laid out several “legitimate policies and goals of the corrections system.”⁹³ The Court acknowledged that legitimate penal objectives include deterring people from committing the crime in question by isolating past offenders, rehabilitating inmates who will eventually return to society, and maintaining internal security of correctional facilities.⁹⁴ In Pell, the Supreme Court ultimately found that the California Department of Corrections’ policy was constitutional because it lessened the overall amount of visitors without restricting inmates’ access to persons aiding in their rehabilitation; thus, the regulation conformed to the neutral government objectives of maintaining security and promoting rehabilitation.⁹⁵ California’s emphasis on rehabilitation and security persuaded the Court to weigh the Turner test in its favor.⁹⁶

Pertaining to the correspondence regulation in Turner, the Court emphasized that Renz’s objective was to enforce safety and security within its facility.⁹⁷ At the time Renz implemented the new regulations, the Missouri Division of Corrections had a growing gang problem.⁹⁸ Renz had previously attempted to combat the gang problem by transferring gang-affiliated inmates to other institutions in order to restrict gang members’ communications.⁹⁹ Therefore, the Court held that the communication regulation was based on a neutral penological objective.¹⁰⁰ However, when looking at the marriage regulation, the Supreme Court decided that safety was not a legitimate penological interest insofar as to prevent inmates from marrying because there was no proof that permitting inmate marriages was more dangerous than forbidding it.¹⁰¹ The Court also decided that restricting marriage to rehabilitate inmates was “suspect” and, therefore, illegitimate because promoting independence among female inmates was not a legitimate issue that needed addressing within the facility.¹⁰²

c. Impact of the accommodation

The Court in Turner explained that it must also evaluate a prison regulation based on the potential impact that accommodating an inmate’s asserted constitutional right would have on the entire facility.¹⁰³ The Court emphasized the importance of deferring to corrections officials when evaluating whether the accommodation was likely to have a “ripple effect” on the prison population.¹⁰⁴

In Beard v. Banks,¹⁰⁵ the Supreme Court discussed the impact of accommodating segregated inmates’ request to access newspapers, magazines, and personal photographs.¹⁰⁶ The inmates were segregated into the most restrictive housing unit because of serious behavioral issues.¹⁰⁷ The Court reasoned that since the purpose of the restrictive policy was to promote better behavior by problematic inmates, removing the policy and, thus accommodating the inmates’ requests, would produce worse behavior.¹⁰⁸ Accordingly, the Court ultimately upheld the policy because accommodating the inmates’ requests would have a negative impact on the institution.¹⁰⁹

When analyzing the “ripple effect” of accommodating Renz’s prisoners’ requests to correspond with inmates in other facilities in Turner, the Court decided that the “ripple effect” would be broad because the proposed exception would reach other facilities and, therefore, would impact those facilities as well.¹¹⁰ Thus, the Court upheld the correspondence regulation based on the overreaching impact that otherwise accommodating the inmates’ requests to correspond would have.¹¹¹ In evaluating the “ripple effect” of the marriage regulation, the Court held that the impact of allowing inmates to marry would be rather small, especially if the inmate was marrying a civilian.¹¹² Since the marriage regulation only impacted Renz, unless the inmate was seeking to marry an inmate at a different institution, the Court emphasized the rather small impact an accommodation would have, and thus struck down the marriage prohibition.¹¹³

d. Absence of ready alternatives

The Court in Turner explained that it must also evaluate whether a regulation is reasonable based on the absence of ready alternatives.¹¹⁴ For example, obvious and easy alternatives that are available at the facility are evidence that the regulation is not reasonable but rather an exaggerated response to a facility’s concerns.¹¹⁵ The Supreme Court evaluates whether alternatives are easy or obvious by calculating the de minimis cost to the institution in terms of the burden on staff resources and risks that could arise.¹¹⁶ In Turner, the burden on staff resources was the amount of time it would have taken correctional officers to read and then censor each inmate-to-inmate communication.¹¹⁷ The inherent risk was that the staff could potentially miss a dangerous communication, fail to censor it, and thus allow gang-related plans to come to fruition.¹¹⁸ The Court further explained that “the unavailability of ‘ready alternatives’ is typically . . . one of the underlying rationales for the adoption of inmate privilege deprivation policies.”¹¹⁹

When evaluating Turner’s correspondence regulation, the Court acknowledged that there were no obvious or easy alternatives to Renz’s current regulation, especially because other facilities employed similar measures to maintain security.¹²⁰ Therefore, the Court upheld the correspondence regulation.¹²¹ However, when analyzing the marriage regulation, the Court stated that there were obvious and easy alternatives to the restrictive regulation that would still allow prisoners to marry.¹²² For example, an easy alternative is to generally permit marriages unless the marriage poses a known threat to institutional security.¹²³ The Court, finding that there were easy alternatives to prohibition, struck down the marriage prohibition.¹²⁴

D. The Religious Land Use and Institutionalized Persons Act

Congress passed RLUIPA in 2000 to prevent state and local governments from frivolously imposing substantial burdens on institutionalized persons’ right to freely exercise their religions.¹²⁵ Section three of RLUIPA specifically protects prisoners’ right to freely exercise their religions.¹²⁶ In enacting RLUIPA, Congress carved out a strict scrutiny test composed of two requirements for institutions restricting religious activities: the burden on free exercise must be (1) “in furtherance of a compelling governmental interest; and (2) [the least] restrictive means of furthering that compelling governmental interest.”¹²⁷ Nonetheless, local and state prisons have continued to limit inmates’ right to freely exercise their religions without having compelling governmental interests or utilizing the least restrictive means of that interest.¹²⁸ Courts frequently use the Cutter test to analyze these alleged violations.¹²⁹

1. Cutter’s substantial burden test

Cutter arose out of an Ohio class action where inmates alleged that the Ohio Department of Rehabilitation and Corrections discriminated against them because of their nontraditional faiths.¹³⁰ The inmates also claimed that the Ohio Department of Rehabilitation and Corrections failed to accommodate their right to freely exercise their religion.¹³¹ The class of inmates identified as adherents of “nonmainstream” religions such as Satanist, Wiccan, and the Church of Jesus Christ Christian.¹³² The Ohio Department of Rehabilitation and Corrections responded to the suit with a facial challenge to RLUIPA, arguing that RLUIPA violated the Establishment Clause of the First Amendment by improperly advancing religion.¹³³ The district court denied Ohio’s motion to dismiss.¹³⁴ On appeal, the Sixth Circuit reversed the district court’s decision and held that the institutionalized persons section of RLUIPA violated the Establishment Clause.¹³⁵ The Supreme Court granted certiorari to reconcile RLUIPA with the First Amendment, ultimately proving that the two can coexist.¹³⁶ By unanimously upholding RLUIPA, the Supreme Court reversed the Sixth Circuit’s decision and remanded Cutter to be evaluated based on whether the (1) substantial burden was (2) in furtherance of a compelling governmental interest and was (3) the least restrictive means of achieving that compelling governmental interest.¹³⁷

a. Substantial burden

After upholding RLUIPA, the Supreme Court cemented the test for evaluating RLUIPA violations.¹³⁸ The first prong of the Cutter test requires courts to decide whether there is a substantial burden on the petitioner’s religious exercise.¹³⁹ RLUIPA defines religious exercise to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”¹⁴⁰ A substantial burden is not a mere inconvenience; rather it is a considerable pressure to modify one’s behavior and thus violate one’s own beliefs.¹⁴¹ Substantial burdens usually involve direct or indirect coercion by a government entity.¹⁴²

b. Compelling governmental interest

Cutter’s second prong discusses what qualifies as a compelling governmental interest, and therefore would allow institutions to enact a regulation sought to protect that interest.¹⁴³ By default, prison security is always a compelling governmental interest.¹⁴⁴ However, “security concerns must be ‘grounded on more than mere speculation, exaggerated fears, or post-hoc rationalizations.’”¹⁴⁵ Therefore, courts must still evaluate penological regulations, even when they are based on security concerns, to ensure there are legitimate concerns triggering the regulations.¹⁴⁶

c. Least restrictive means

Cutter’s third prong requires courts to ensure that prison regulations are the least restrictive means to achieve the intended compelling governmental interest.¹⁴⁷ The least restrictive means standard is “exceptionally demanding” because it requires the government to prove that it “lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties.”¹⁴⁸ Further, when less restrictive means are available to achieve the government’s compelling interest, the government must use them.¹⁴⁹ Holt v. Hobbs is an example of the Supreme Court instructing prison officials to use less restrictive means to ensure the security of their facilities, rather than infringe on a prisoner’s right to freely exercise his religion.¹⁵⁰

In Holt, Arkansas inmate Gregory Holt was a practicing Salafi Muslim.¹⁵¹ The Arkansas Department of Correction had a strict grooming policy that prohibited its inmates from growing facial hair.¹⁵² Holt argued that, as a Muslim, growing facial hair was a necessary part of his religious practice and that, therefore, Arkansas’s policy impeded his ability to practice his religion.¹⁵³ It is important to note that Arkansas carved out an exception to its grooming policy for inmates with diagnosed skin conditions, which allowed them to grow one-fourth inch beards.¹⁵⁴ Accordingly, Holt argued that he should also be granted an exemption to the policy based on his religious beliefs, and he requested to grow a one-half inch beard.¹⁵⁵ At trial, Arkansas Department of Correction employees testified that allowing Muslim inmates to grow beards would cause safety concerns such as giving inmates the opportunity to conceal contraband in their beards or disguise their identity.¹⁵⁶ Arkansas officials also voiced a concern that preferential treatment towards one inmate or a group of inmates can incite violence within a facility.¹⁵⁷ After granting certiorari, the Supreme Court decided that instead of forbidding Muslim men from growing half-inch beards for security purposes, the Arkansas Department of Correction had less restrictive alternatives available to it, like searching the beards or having the inmates run combs through their beards.¹⁵⁸ The prison officials also argued that allowing inmates to grow beards could prevent guards from making quick identifications of inmates if the inmates were permitted to have a beard then shaved it, and that this could also create security concerns if inmates tried to use this tactic to enter restricted areas.¹⁵⁹ However, the Court again proposed less restrictive means such as photographing the inmates before and after they grow their beards.¹⁶⁰ This ruling illustrates that less restrictive alternatives to stringent policies can be simple substitutes that still allow inmates to freely exercise their religion.¹⁶¹

II. Analysis

Applying Turner and Cutter to Texas’s new policy proves that the policy is unconstitutional.¹⁶² Analyzing the policy through Turner’s lens confirms that Texas’s policy is not reasonably related to a legitimate penological objective.¹⁶³ Examining the policy through the Cutter test illustrates that condemned Texas inmates’ constitutional rights are substantially burdened although less restrictive alternatives exist.¹⁶⁴ Therefore, Texas’s new policy violates both the Free Exercise Clause of the First Amendment and RLUIPA.¹⁶⁵

A. Texas’s New Spiritual Advisor Policy Clearly Violates the Free Exercise Clause

Texas’s policy banning spiritual advisors from accompanying condemned inmates during executions clearly violates the Free Exercise Clause of the First Amendment.¹⁶⁶ Texas’s law intentionally targets religious inmates to prohibit them from worshipping with their spiritual advisors at the time of their death.¹⁶⁷ Evaluating Texas’s spiritual advisor policy under the four prongs of the Turner test confirms the policy is unconstitutional.¹⁶⁸

1. Texas’s new policy blatantly lacks a rational connection to security

Texas’s policy banning spiritual advisors from accompanying condemned inmates during their executions fails to present a valid, rational connection to the Texas Department of Criminal Justice’s internal security during executions.¹⁶⁹ In fact, Jeremy Desel, the designated spokesperson who announced the change in Texas’s execution policy, “declined to elaborate on the reasoning behind the policy change.”¹⁷⁰ Without a justification, Texas has failed to present a valid, rational connection between the new policy and any penological interest, let alone security initiatives. However, since Texas now only allows security personnel within its execution chambers, this Comment will assume the policy changed because of security concerns.¹⁷¹

Prison regulations limiting First Amendment rights are only constitutional if the connection between the regulation and the institution’s goal is not arbitrary or irrational.¹⁷² In Turner, prison officials alleged that Renz’s regulations, which limited communication between inmates at different facilities, were rational because they prevented inmates from organizing interfacility plans to escape or coordinate violence.¹⁷³ Here, Texas’s policy does not have a similar connection to ensuring safety or security because the Department has not alleged that any security breaches have resulted or will result from allowing spiritual advisors to accompany condemned inmates into the execution chambers during their executions.¹⁷⁴ Rather, Texas’s new policy is more similar to the regulation prohibiting Renz’s inmates to marry, which the Supreme Court struck down because it had no effect on inmate conduct.¹⁷⁵ Further, allowing spiritual advisors to accompany inmates into execution chambers, much like allowing them to marry, provides them with invaluable benefits such as prayers and company during their last moments.¹⁷⁶

Texas’s policy also fails to withstand the Supreme Court’s analysis in Jones.¹⁷⁷ In Jones, the Supreme Court held that prohibiting union members from holding group meetings and soliciting new members was rationally related to neutral penological objectives.¹⁷⁸ Conversely, Texas revising its policy to allow various spiritual advisors would not allow inmates to meet in groups or solicit other inmates; it would merely allow a spiritual advisor, who has likely already had contact visits with inmates,¹⁷⁹ to stand with them during their execution. In Jones, the North Carolina institution feared that inmates unionizing would create an easier opportunity for them to revolt in the workplace,¹⁸⁰ but Texas revising its policy to allow any spiritual advisors into the execution chambers would not present the same concerns about giving inmates the opportunity to collaborate or gain power. The TDCJ would merely be permitting one spiritual advisor, surrounded by prison officials, to stand with one inmate while the inmate is executed, which would not give the inmate any additional power.

The Supreme Court also found a rational connection to security in Bell.¹⁸¹ In Bell, the Court permitted the prison facility to prohibit books not mailed directly from publishers because the facility showed that inmates used secondhand books to smuggle in, then collect and conceal contraband.¹⁸² However, Texas has not proven that spiritual advisors of various religions are a threat to the security of its executions.¹⁸³ Texas implemented its policy without offering any explanation or reasoning.¹⁸⁴ Therefore, because Texas has failed to provide a logical foundation for its new policy that bans spiritual advisors from its execution chambers or any evidence that it is safer to prohibit spiritual advisors, the policy falls on the irrational side of the analytical spectrum and does not have a valid connection to maintaining prison security.

2. Texas clearly embellished the governmental objective of its new policy

Texas’s new policy banning spiritual advisors does not communicate a legitimate and neutral governmental objective.¹⁸⁵ Based on the timing, Texas likely changed its policy in response to the Supreme Court ruling in Murphy.¹⁸⁶ But, it likely chose to prohibit any spiritual advisor rather than allow all spiritual advisors because of the security concerns it previously claimed prevented it from allowing Murphy’s Buddhist spiritual advisor into the execution chambers.¹⁸⁷ Security is a compelling governmental objective;¹⁸⁸ therefore, prohibiting all spiritual advisors, instead of those from select religions, is a neutral response to the Supreme Court’s holding in Murphy.¹⁸⁹ However, in this instance, the governmental objective is illegitimate because there is no evidence that banning spiritual advisors from accompanying condemned inmates during their executions is less dangerous than allowing them into the chambers.¹⁹⁰

Further, in Pell, the Supreme Court allowed the California Department of Corrections to prohibit the press from attending contact visits with inmates to maintain institutional security.¹⁹¹ Moving forward, inmates may only receive visitors for rehabilitative purposes. While the decision in Pell may seem to support Texas’s new policy, it actually supports the assertion that the policy is unconstitutional. In Pell, the facilities’ goals were to rehabilitate inmates and maintain security.¹⁹² Texas cannot claim that it is seeking to rehabilitate inmates because Texas is executing these inmates.¹⁹³ Under Pell, Texas does have a claim that allowing fewer people to have contact with visitors helps maintain security;¹⁹⁴ however, in this case, Murphy has already had contact visits with his spiritual advisor for six years.¹⁹⁵ Thus, Texas cannot now, after no reported incidents, claim that it needs to cut down on Murphy’s spiritual advisor visitations. Therefore, Texas’s ban on spiritual advisors is not promoting a governmental objective because it is not preventing additional people from entering the facility in order to maintain security; rather, the ban merely restricts people from entering one room within the facility.¹⁹⁶ Therefore, Texas’s policy is baseless.¹⁹⁷

3. There is no potential impact on Texas’s correctional facilities if Texas chooses to accommodate spiritual advisors within its execution chambers

Accommodating condemned inmates’ requests to have their spiritual advisors accompany them during their executions will not have any effect on the rest of the facility or the TDCJ.¹⁹⁸ The effects of changing the policy to allow spiritual advisors into the execution chambers are narrow and limited to only one facility because the Huntsville Unit is the only facility in Texas that performs executions.¹⁹⁹ Allowing inmates to have their spiritual advisors accompany them into the execution chambers would only have a small ripple effect, if any, because the regulation would only impact one condemned inmate,²⁰⁰ who is already isolated from the rest of the prison population, at a time.²⁰¹ Additionally, approving inmates’ spiritual advisor requests will not produce bad inmate behavior; Texas did not even implement its policy to encourage good behavior.²⁰² Therefore, Texas could allow spiritual advisors into the execution chambers without disrupting any aspect of prison life or providing special treatment to a particular inmate, especially since Texas previously allowed select spiritual advisors into its execution chambers.²⁰³

4. There are ready alternatives to Texas’s restrictive policy

There are ready alternatives to Texas’s policy banning spiritual advisors from accompanying condemned inmates into its execution chambers.²⁰⁴ The Supreme Court previously defined ready alternatives as having low cost, which includes monetary value and necessary manpower, and, in terms of safety and security, low risk for correctional facilities.²⁰⁵ Justice Kavanaugh already proposed that Texas could allow all inmates to have a spiritual advisor in the execution chambers with them during their executions.²⁰⁶ Justice Kavanaugh’s suggestion is evidence that Texas’s strict regulation infringing on condemned inmates’ constitutional right to freely exercise their religious beliefs is not reasonable, but rather an “exaggerated response” to the Supreme Court’s ruling in Murphy.²⁰⁷ While the correctional facility does not have the burden to suggest less restrictive regulations, any plausible alternatives an inmate proposes are evidence that the regulation fails the reasonableness test because ready alternatives exist.²⁰⁸ Therefore, Justice Kavanaugh’s suggestion to allow all spiritual advisors into the execution chambers and any of the inmates’ proposed alternatives suggest that Texas’s policy banning spiritual advisors is an exaggerated response, which violates the Supreme Court’s reasonableness test.²⁰⁹

Further, the Supreme Court explained that “the unavailability of ‘ready alternatives’ is typically . . . one of the underlying rationales for the adoption of inmate privilege deprivation policies.”²¹⁰ Since Justice Kavanaugh proved that there was more than one option to remedy Texas’s Establishment Clause violation before Texas implemented its new policy, the unavailability of ready alternatives could not be Texas’s underlying rationale.²¹¹ While the proposed alternatives may require additional resources, such as having to train new death row spiritual advisors,²¹² they would not violate inmates’ constitutional right to freely exercise their religion.

B. Texas’s Policy Blatantly Violates the Religious Land Use and Institutionalized Persons Act

Texas’s policy banning spiritual advisors from accompanying condemned inmates during their executions clearly violates RLUIPA.²¹³ Texas intentionally imposed a burden on inmates’ right to freely exercise their religion during their last moments alive.²¹⁴ Evaluating Texas’s new policy using the Cutter test proves that banning spiritual advisors from the execution chambers violates RLUIPA.²¹⁵

1. Banning spiritual advisors from the execution chambers substantially burdens condemned inmates

By enacting its new policy, Texas clearly places a substantial burden on its condemned inmates’ right to freely exercise their religion during their executions.²¹⁶ Murphy argued that he needed his spiritual advisor present in the chambers during his execution to allow him to keep his thoughts focused on Buddha, so Murphy could be reborn in the Pure Land.²¹⁷ Since RLUIPA defines religious exercise to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,”²¹⁸ Murphy’s religious request may qualify for RLUIPA protection even if his religion does not require the desired expression.²¹⁹ For example, growing a beard was not a central pillar of Holt’s religion, but he wanted to grow a beard as a way to express his Muslim faith.²²⁰ Since RLUIPA only requires that the expression be related to the inmate’s religion, the Supreme Court struck down the beard prohibition for substantially burdening Holt’s freedom of expression.²²¹ Like the beard ban, prohibiting Murphy’s access to a Buddhist spiritual advisor during his execution substantially burdens his ability to freely exercise Buddhism because his spiritual advisor cannot help focus his thoughts on Buddha from a separate room.²²² While Buddhism does not require a spiritual advisor to accompany believers during death, prohibiting the spiritual advisor from joining Murphy in the execution chambers during his execution still substantially burdens his right to freely exercise his Buddhist faith.²²³

2. At best, Texas embellishes the compelling purpose of its new policy

By default, security is always a compelling governmental interest.²²⁴ However, Texas fails to justify its new policy or even provide any purpose for which it was set to achieve.²²⁵ Even if Texas enacted its new policy to enhance its security measures, any security concern was likely grounded on mere speculation or exaggerated fears because the Department failed to justify the new policy or explain any security concerns.²²⁶ For example, in Holt, the Arkansas Department of Corrections clearly based its grooming policy on security.²²⁷ However, in this case, the TDCJ did not articulate any legitimate security concerns that triggered the new regulation.²²⁸ Therefore, Texas’s policy lacks support and, thus, should not infringe on its inmates’ right to express their religion.

3. Less restrictive means to Texas’s overbearing policy exist

Texas’s new policy banning spiritual advisors from accompanying condemned inmates during their executions is not the least restrictive means to secure its executions.²²⁹ Texas fails to prove that it lacks “other means of achieving its desired goal.”²³⁰ Texas surely could enact less restrictive means to ensure the safety of its executions, even if it requires more resources. For example, the Supreme Court held in Holt that instead of forcing Muslim men to shave their beards, which conflicted with their religious beliefs, prison officials could simply search their beards with combs and photograph inmates with and without beards to maintain prison security.²³¹ While these alternatives required more resources, the Court’s analysis weighed in Holt’s favor because the Court acknowledged Holt’s significant interest in expressing his religion.²³²

If Texas is concerned with security, it could hire and train multiple spiritual advisors who, together, represent every religion genuinely practiced on its death row. Although it would require more resources, like in Holt, it would also ensure that the spiritual advisors are authorized to be present during executions. While courts routinely defer to prison officials’ experience when evaluating prison policies,²³³ Texas prison officials have not alleged that having spiritual advisors in the execution chambers presents legitimate threats to prison security.²³⁴

An example of a less restrictive alternative is making spiritual advisors of any religion available during executions. This alternative could require more resources,²³⁵ but because Texas executes a limited number of inmates per year,²³⁶ the TDCJ could adequately process background checks and provide trainings without draining its resources. Moreover, Murphy’s spiritual advisor has already cleared the TDCJ’s security protocol and attended contact visits with Murphy in the weeks leading up to this execution.²³⁷

Conclusion

In light of the foregoing reasons, Texas’s new policy banning spiritual advisors from accompanying condemned inmates during their executions is unconstitutional. Because Texas failed to prove that its new policy is reasonably related to a legitimate penological objective, the policy fails under the Turner test and thus violates the Free Exercise Clause of the First Amendment.²³⁸ Additionally, because Texas’s policy presents a substantial burden to a condemned inmate’s right to free exercise without serving a compelling governmental purpose by the least restrictive means, the policy also fails the Cutter test and therefore violates the Religious Land Use and Institutionalized Persons Act.²³⁹

Justice Kavanaugh has already suggested one alternative that would allow inmates to freely exercise their religion upon death: allowing a spiritual advisor of any religion to accompany condemned inmates in the execution chambers during their executions.²⁴⁰ As shown by Murphy visiting with his spiritual advisor for the last six years,²⁴¹ Texas clearly has the resources to adequately investigate and clear its death row visitors. When condemned Texas inmates petition the Supreme Court for a writ of certiorari because they want their spiritual advisor to accompany them during their executions, the Court should grant certiorari, follow its majority opinion in Murphy,²⁴² and mandate that Texas use its resources to allow condemned inmates to exercise their constitutional right to freely express their religion during their death.

Dead Wrong: Texas Tests the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act by Banning Spiritual Advisors from Execution Chambers

Share this post

Contact Us

Join Our Mailing List