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February 4, 2019

Litigation update on Alabama death row prisoner denied Muslim spiritual adviser for upcoming execution

I highlighted in this post last week the notable religious claims being made by Domineque Ray, who is scheduled to be executed by Alabama this coming Thursday.  I just saw this local article from a few days ago, headlined "Judge denies stay of execution for Alabama inmate," which provides this update on the state of the litigation:

A federal judge on Friday denied a stay of execution request from a Muslim death row inmate who claimed the absence of his spiritual adviser in Alabama's death chamber would violate his religious rights.

Domineque Ray this week filed a stay of execution, which is slated for Feb. 7, to challenge Alabama's practice of placing a Christian prison chaplain with inmates in the state execution chamber. Ray argued in court documents that he should have access to his Muslim spiritual adviser in the moments before his death. Failing that, Ray requested the Christian prison chaplain not be present.

On Thursday, the Alabama Department of Corrections acquiesced to Ray's first request, agreeing to keep the prison chaplain out of the chamber. But lawyers argued security concerns required Holman prison limit the execution chamber to trained corrections employees.

In a written order on Friday, U.S. District Judge Keith Watkins agreed that allowing a "free world" spiritual adviser into the death chamber would overburden ADOC's execution process. "Though a state chaplain is usually in the death chamber, he is also a trained member of the execution team. He has witnessed dozens of executions and trained on how to respond if something goes wrong," Watkins wrote. "If the chaplain disobeys orders, he will face disciplinary action. In contrast, Ray’s private spiritual adviser is untrained, inexperienced, and outside the State’s control."

Spencer Hahn, Ray's co-counsel, argued Thursday training nonemployee spiritual advisers to be present in the execution chamber should not be a barrier to providing inmates their religious rights. "We are disappointed that the District Court's order did not uphold the substantial claim that Mr. Ray's free exercise of religion is being interfered with, or the claim that the State is violating the establishment clause of the First Amendment of the United States Constitution," said John Palombi, an attorney for Ray. "We will be appealing this ruling and asking the Court of Appeals to stay Mr. Ray's execution to allow these important issues to be resolved in a more deliberate manner."

ADOC policies allow a death row inmate's chosen spiritual adviser visitation up to 5:15 p.m. on the day of an execution, when they are then allowed to view the execution from a witness room adjacent to the execution chamber. "Why does Mr. Ray not get the same benefit that a Christian would?" Hahn asked the court.

Ray was sentenced to death for the 1995 rape and fatal stabbing of 15-year-old Tiffany Harville of Selma. Months before his death penalty trial, he was sentenced to life for a 1994 slaying of two teen brothers, The Associated Press reports.

As indicated above, this litigation is headed to the Eleventh Circuit Court of Appeals, and likely will get the Supreme Court this week in some form regardless of how the Eleventh Circuit might rule.  In this context, it bears recalling that the Supreme Court four years ago in Holt v. Hobbs ruled unanimously in favor of a Muslim prisoner based on the Religious Land Use and Institutionalized Persons Act (RLUIPA).  Justice Alito was the author of the opinion in Holt, and I am interested to see how he and other Justices might approach this case.

Prior related post:

February 4, 2019 at 10:49 AM | Permalink


The emergency motion for a stay has been filed in the 11th Circuit and the Rutherford Institute (through counsel at Arnold and Porter), has filed an amicus brief. Will the high profile attention make the 11th Circuit take note?

Posted by: defendergirl | Feb 4, 2019 4:15:34 PM

Thanks, defendergirl. Do you think there are any (new?) judges on the Eleventh Circuit who would be really jazzed by this issue?

Posted by: Doug B. | Feb 4, 2019 4:23:14 PM

Professor B: It will be interesting to see what Judge Newsom has to say if he is on the panel. I am not aware of any writings on the topic by him or Judges Grant or Branch, but this issue may make strange bedfellows for a majority grant of relief.

Posted by: defendergirl | Feb 4, 2019 4:30:49 PM

the lawsuit is frivolous, costs should be awarded against the attorneys

it is crystal clear that the state gets to choose who is there when the guy gets the big jab

Posted by: federalist | Feb 5, 2019 8:45:06 AM

federalist, did you see the line above explaining that "On Thursday, the Alabama Department of Corrections acquiesced to Ray's first request, agreeing to keep the prison chaplain out of the chamber"?

Doesn't the decision by an opposing party to agree to a request by the litigant undermine a claim the lawsuit is legally "frivolous"? Though a voluntary change in behavior by a defendant may not turn a litigant into a "prevailing party" for purposes of fee award, it seems pretty strong evidence that the litigant should not himself be forced to pay for seeking legal relief, no?

Posted by: Doug B | Feb 5, 2019 10:46:44 AM

An update for federalist: a stay was granted on Feb 6 by an 11th Circuit panel. I suppose it is possible that could be achieved by a truly frivolous lawsuit, but I suspect this is another arena in which your rhetoric is ahead of reality.

Posted by: Doug B. | Feb 6, 2019 3:27:19 PM

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