So the clergy-in-the-death-chamber saga continues, each chapter stranger than the one before. Let’s connect the dots.
In February, to general condemnation (including my own), the U.S. Supreme Court allowed the execution of a Muslim inmate in Alabama who had been denied the presence of an imam in the death chamber, even though a Christian inmate could have had clergy present. After the outcry, in late March the justices switched their position, agreeing to stay the execution of a Buddhist inmate in Texas who has been denied the presence of a Buddhist priest in the death chamber, even though a Christian inmate could have clergy present.
Then, this week, after scratching its head for about 12 seconds, Texas hit upon perhaps the worst possible solution: Let’s not allow anybody to have clergy present in the death chamber. Then nobody’s being discriminated against.
Talk about carrying a bad joke too far. This is a bit like eliminating the public schools in order to avoid integrating them. (Don’t laugh: Prince Edward County, Virginia, actually tried this trick in the 1960s, only to be slapped down by the Supreme Court.)
The idea is so absurd that it sounds like a constitutional law final examination question — one most students could hit out of the park. The state is about to kill a man. Let’s imagine, for the sake of argument, that the condemned man deserves it. His last request on this earth is for the consolation of his faith in his final moments. Someone to pray with, to comfort him as his eyes close for the last time and he crosses into the great unknown. And the state’s answer amounts to: “Gentlemen, you can’t pray in here! This is the death room!”
Such a policy, surely, represents the very definition of cruel and unusual punishment. The state of Texas practically is begging to be sued; and the litigation surely will drag on; and if the courts are sensible, in the end this particular practice will not be permitted.
Now, those who are of a mind might decide to blame Justice Brett Kavanaugh, who actually suggested this possibility in his separate opinion concurring in last month’s grant of stay:
“A State may choose a remedy in which it would allow religious advisers only into the viewing room and not the execution room because there are operational and security issues associated with an execution by lethal injection.”
The problem, wrote Kavanaugh, is that things can go wrong, as they do in other “medical procedures.” OK. Chilling but true. Here’s his solution:
States therefore have a strong interest in tightly controlling access to an execution room in order to ensure that the execution occurs without any complications, distractions or disruptions. The solution to that concern would be to allow religious advisers only into the viewing room.
Well, let’s break this down. If you’re going to have executions, you’re going to have security problems, so of course not everybody can get into the death chamber. But before we decide that the obvious solution is that no inmate will be allowed a spiritual adviser at his side as his eyes close for the last time, we might at least want to compile a list of all the episodes in which executions have been disrupted by clergy of any faith.
I suspect that the number will be close to zero.
Yes, yes, I know. You’re worried about the slippery slope. As one of my professors used to ask, what about the Church of the Matchbook Cover? Or what if we’re executing a devotee of the worst religious cult we can imagine, whose leaders are themselves violent people?
The answer is that the Constitution doesn’t allow the state to pick and choose except on neutral grounds. The condemned still deserve clergy from their faith at their final moments, even when the faith is one most of us consider absurd. Certainly the state can draw an exception in the case of serious threat of violence, as in my cult example. What the state cannot do is to exclude all clergy because it’s possible to imagine one turning out to be a threat.
The short of the matter is that Kavanaugh is mistaken. Spiritual solace is not the state’s to regulate, and clergy confined to the viewing room can’t play the same role as clergy nearer by.
The religious leader who comforts the criminal facing death is like Kipling’s “Thousandth Man,” who stays by your side to the gallows’ foot. Putting a wall between prisoner and comforter is exactly what a civilized society should strive to avoid.
Implementing this approach won’t be easy. Chaplains who work on death row are trained in the awful technology of capital punishment, and know how to comfort without getting in the way. At minimum the state should train chaplains from more faith communities — certainly from all the major ones. If it proves necessary to bring in an outsider, the state should have procedures in place do so safely.
A state might object that training more chaplains will prove costly.
But the problem arises only because the state has decided that some people deserve to die. Reasonable people can disagree over whether the state is right about that, but there’s no particular reason that capital punishment has to be cheap. Certainly depriving the condemned man or woman of spiritual comfort in the final moments is the worst way to save a buck.
Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include The Emperor of Ocean Park, and his latest nonfiction book is Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.