By Amy Howe
on Nov 16, 2022
at 3:48 pm
The Supreme Court rejected a request from Texas inmate Stephen Barbee to postpone his execution, scheduled for Wednesday evening, after a judge ruled that the state was not adequately protecting inmates’ religious rights in the execution chamber.
Texas agreed to allow Barbee’s minister to touch him and pray out loud during the lethal injection. But a federal district judge nevertheless put the execution on hold, ruling that the state could proceed only if it announced a “clear policy” to safeguard inmates’ religious rights in their final moments. An appeals court lifted the district judge’s stay, and in a brief, unsigned order with no public dissent, the justices declined to reinstate it.
The denial of Barbee’s request was the second time on Wednesday that the court allowed an execution to proceed. Earlier in the day, the justices rejected the final appeals of Arizona inmate Murray Hooper.
Barbee, 55, was convicted and sentenced to death for killing his former girlfriend, Lisa Underwood, who was pregnant, and her seven-year-old son, Jayden. Barbee filed a federal civil rights claim in 2021, seeking to have his spiritual adviser in the execution chamber with him to pray out loud and put his hands on him.
The issue of spiritual advisers at executions has been a familiar one for the Supreme Court in recent years. In March, in Ramírez v. Necklace, the justices ruled that another Texas inmate could have his pastor touch him and pray out loud while he is being executed. The justices likely hoped that their decision in that case, which urged states to adopt clear rules for the future and instructed courts to allow executions to go forward with religious accommodations when necessary, might have put an end to disputes over spiritual advisers.
Shortly after the decision in Ramirez, the Texas Department of Criminal Justice indicated that it would not change its execution protocol. Instead, the agency said it would review requests to have spiritual advisers touch an inmate or pray out loud on a case-by-case basis. An agency spokesperson later assured the Associated Press that the state would generally accommodate such requests “unless there’s just something ridiculously outrageous.”
In Barbee’s case, prison officials agreed to allow his spiritual adviser, a Salvation Army minister, to audibly pray, touch his leg or foot, and hold his hand. But US District Judge Kenneth Hoyt, who had put Barbee’s case on hold until the Supreme Court issued its decision in Ramireznevertheless remained Barbee’s execution until the state adopted a formal policy for spiritual advisers.
The US Court of Appeals for the 5th Circuit lifted Hoyt’s order on Nov. 11, explaining that it was too broad because it applied not only to Barbee but also to other inmates. That prompted Barbee to come to the Supreme Court on Tuesday, asking the justices to block his execution. He argued that the court of appeals had “ignored this Court’s clear directive in Ramirez that called for the very remedy the injunction orders”: the adoption of clear rules in advance to prevent last-minute litigation.
The state countered that although the court in Ramirez had “recommended” that prisons draft new policies for religious exercise in the execution chamber, it only required an order that accommodates the inmate’s religious exercise – precisely, the state said, what it has done in Barbee’s case.
On Tuesday, Hoyt stepped in and effectively put Barbee’s execution on hold for a second time. Hoyt reiterated that the state must publish a clear policy on religious rights in the execution chamber – but this time only for Barbee.
The state returned to the 5th Circuit, which once again lifted Hoyt’s order. Hoyt, the court explained in a brief opinion issued on Wednesday afternoon, “is not authorized to order” the state “to adopt a written policy to govern executions in general.”
This article was originally published at Howe on the Court.