tv Justices Hear Texas Death Row Inmates Religious Rights Case CSPAN November 9, 2021 9:41pm-11:21pm EST
every day we take your calls live on the air on the news of the day and discuss policy issues that impact you. wednesday morning, the cook political report discusses what the new jersey governor race means for campaign 2022 and the latest on redistricting. a representative of education week talks about what critical race theory is. watch washington journal on c-span or on c-span now. join the discussion with your phone calls, texts, and tweets. >> next, the supreme court hears oral arguments in a case challenging a texas death row's inmate -- row inmate's religious rights. this is an hour and a half. >> we will hear case 21-5592,
ramirez v. collier. >> across texas' exec -- executions, stay policy was to audibly pray. in 2019, that long-standing practice changed suddenly when the state chose to forbid any religious advisor from the execution chamber. ramirez has fought to preserve the religious exercise rights to spiritual advisor presence. while these challenges proceeded, the state withdrew ramirez's execution date and exchange -- in exchange for the petition. the state reset ramirez's execution, following two months after by a reversion to allowing his spiritual advisor presence. the state waited months more to reveal a ban on touch. either the state merely delayed
revealing these new restrictions or, worse, added them piecemeal. either way, the state's actions rendered that system unavailable under the plra. the state now argues ramirez's resort to litigation came somehow far too late, but also six days too early. the current approaches of the federal government and states like alabama prove that texas's restrictions on touch and prayer are not restrictive. mr. ramirez should prevail as a matter of law. if the court determines however that the state should be allowed another chance to attempt to meet its burden, this state should remand an evidentiary hearing. i welcome the court's questions.
>> that was only on file for two days before the state asked me to dismiss it without prejudice. when i had an affidavit, it was reflected appropriately. >> that is an affidavit from the pastor. we are talking about mr. ramirez now. if we think that mr. ramirez has changed his requests a number of times and has filed a last-minute complaint, and if we assume that is some indication of gaming the system, what should we do with that with respect to assessing the sincerity of his beliefs?
mr. kretzer: you can assess the sincerity of mr. ramirez's beliefs by looking at the best evidence in the record, one hand written signed grievance after the other, requited late -- other, repeatedly requesting the same thing. >> people file letters in nonreligious contexts. it is evidence that they obviously don't want to be executed. and in some instances they are gaming the system. my question is, can one's repeated filing of complaints, particularly at the last minute, not only be seen as evidence of gaming of the system, but also of the sincerity of religious beliefs? mr. kretzer: i can see how a hypothetical inmate filing a last-minute request might be so construed. i do not play games.
when the state set the execution date in the year 2020, i filed a 1983 lawsuit and the state asked me to dismiss it without prejudice. when the state filed a death warrant in the year 2020, it was only -- mr. ramirez immediately filed grievances, there was no waiting. the state handed him a copy of this new policy they promulgated on april 21, 2021. mr. ramirez has always filed these grievances within days of learning that there would be this note touch requirement that was suddenly imposed -- no-touch requirement that was suddenly imposed in 2021. yet it was the state that delays. i think there is an alarming attention you see in the affidavit where she says as the execution date gets quicker, the state tries to process these grievances all the faster.
that is not what happened. mr. ramirez filed his request in july of 2021. the state sat on this for six weeks until we were right on the cusp of the execution. i would contend that any delay is on the part of the state. there is no insincerity with mr. ramirez's beliefs. he asked as quickly as possible as he is required to from the prison system. justice thomas: thank you. >> counsel, what is your client's position on touch? is it anywhere on his body that will fulfill his religious needs? mr. kretzer: that is correct. the pastor can touch anywhere on the body. he can touch mr. ramirez's foot, an extremity on the far end of the body from where the iv line
would be inserted. >> how would you analyze the case? would it be any different than how you are analyzing in your case if the religious conviction were somewhat different and the hand had to be on the forehead, the heart, something like that? mr. kretzer: i can see how in su ch a religious exercise, if that was the religious exercise generally was, then touching on the other to the body i still don't think would present a problem because there is no touch anywhere near the iv. the iv is in one arm. the prison doctor has to touch the other arm to assess pulse. there is nothing wrong with the pastor touching the other arm. they are still pretty far removed from the point in which the iv is inserted. >> i don't think the hand or the heart is far removed from the iv
injection site. mr. kretzer: they are closer than the foot is, yet i think the important point is the courts are not allowed to rewrite the religious exercise for the inmates so as to accommodate the religious exercise, that the inmate in his religious precepts dictate, ramirez does not need to be to uched just as his relaxers exercise is not satisfied with the state -- >> i'm trying to get a sense of the standard of review as applied in the situation and what with the analysis be if his religious beliefs required three people to be present. mr. kretzer: the law is specifically designed to take these matters of religious exercise up on an inmate by inmate basis.
if i make an exception for you, i have to make it for everyone. >> very eloquent. mr. kretzer: it was not my words. the logic being that it has to be taken up on an inmate by inmate basis. if an inmate genuinely held religious observance that needed to be done on a particular point in the body, that might be a different case. the standard is that from the statute to take it up on an inmate -- >> that will be the next case, then the case after that where people are moving the gold coast -- the goalposts to delay executions. at least that is the state's concern. there are four issues you need to run through. sincerity. a substantial burden. it has to be a substantial burden. two i, want to ask the state's
compelling interests. i think the state's compelling interest here is challenging for us to analyze. i think it is in reducing risk, risk of something going wrong in the execution chamber. i think the state is saying we want the risk to be zero of a problem. that is when they were excluding everyone, following our equal treatment principle that we enshrined. so we want the risk to be zero. now it looks like there has to be someone allowed in the execution room, a religious administer. we want the risk to be as close to zero of something going wrong. why isn't that a compelling interest when the state says we want the risk to be as close to zero as possible, and if we allow touching and the like, the
risk increases? you might say there is not too much of a risk, it's okay, but the state is saying we want the risk to be low. how do we as a court say it's not compelling? mr. kretzer: my answer is somewhat different from how you phrased it. i do not dispute the state's probable interest in having a secure environment. prisons are all about risk. i understand, it is about the degree of risk. >> we all agree in the security, and i appreciate your answer. the state is saying we want the risk to be close to zero of a problem. you are saying you can do this without a problem and the state is saying that increases the risk of a problem. i don't think you can dispute that. it does increase the risk of a problem. mr. kretzer: my answer is risk is a statistical matter based on empirical data. we have hundreds of executions
over decades. >> that doesn't move me at all, because those were state chaplains who were officials of the state, which was the whole point. that is what created the equal treatment problem to begin with. those were largely christian, right? that created the equal treatment problem. that does not work. what they are worried about is someone from the outside coming in, and you never know. it is a very fraught situation, with a lot of potential for issues, at least the state thinks so. we sitting here are not any execution room. we don't know how we can question the state's interest in keeping the risk of a problem close to zero. you are saying the risk is not that much, but how do we analyze that? mr. kretzer: the answer is while i understand the state's logic, we could not renew prison
chaplains' contract, there is not a single example in history where any spiritual advisor has ever interrupted a proceeding. what the state can do is what the pastor did, drove hundreds of miles to visit with these folks. he signed a penalty backed pledge. we know the state believes the pastor was safe to be in the execution chamber. he sat there all day. >> that is about the facts of this case as i understand it. if we rule in your favor here, this will be a heavy part of our docket for years to come, would be my sense, given the history of death penalty litigation. mr. kretzer: which we will deal with as it comes. >> least restrictive alternatives. your basic point on that is if
another state does it, that shows there will be a less restrictive alternative. what if a state allows multiple people in the room? does that mean every state has to do it? your answer is no to that? mr. kretzer: my answer would be no. >> how about if another state allows bread and wine in the execution room right before the execution? does every state have to do that because it is a less restrictive alternative? mr. kretzer: no, there is a least common denominator. >> if another state allows the minister to kind of hug the inmate, does every other state have to do that? mr. kretzer: no, one state doing a first mover does not calibrate a national standard. justice kavanaugh: how could we as a court say two people no, one person yes? what neutral principle are we relying on when other states do
it and we say, well, other states do it, but that is not the least restrictive alternative? mr. kretzer: no one is asking federal courts to micromanage. i think the issue will remain that you will still have the mo st recent national standards -- an empirical basis. the state of alabama changed its rules in the last six months and carried out such an execution only two weeks ago. the state of alabama affords more religious exercise in that execution. justice kavanaugh: you are making the argument i am a bit concerned about, and you make strong arguments. the argument i'm concerned about is once you get one state doing this, every other state has to follow. i've already said it. you citing alabama from two weeks ago, that will happen over the next few years, i imagine, where states are being sued by
inmates in the last days before an execution, saying another state does it different, i want this. mr. kretzer: states certainly can get to some point where they have innovations greater than their sister states. if a state wants to do that, they have to show evidence in the record after the point of -- after the plaintiff satisfied the issue. we need a conclusion that we need to reach a different result. in the ramirez case, there was no evidence of risk put into the record. justice kavanaugh: the risk is inherent with having another person in the room, i think. you are not saying -- if we rule for you in the case, the concern about future litigation would go away. there is a historical practice of audible prayer and touching, you
kretzer: i don't know that i -- that i would agree with that, justice kavanaugh, respectfully, because i think perhaps what the state has done here is recreated, they've come full circle, back to the same issue which impelled the opinion in murphy, by which i mean if tdcj chaplains, those employees, are able to touch and pray, and now there's a new rule the state has so told us in -- in a seriatim fashion last summer, that the outside non-tdcj employees are not allowed to touch and pray, now you have a new form of denominational discrimination. justice alito: but out -- over the last couple of years, we have had a whole series of stay applications that present issues that are related to the one that is presented here, and each one has been different. like virtually every application for a stay of execution, they come to us at the last minute, the day before, sometimes the day of. and what you have said so far suggests to me that we can look forward to an unending stream of variations.
so you would be satisfied -- you have told us you would be satisfied if pastor moore touches mr. ramirez's foot. but what's going to happen when the next prisoner says that i have a religious belief that he should touch my knee? he should hold my hand? he should put his hand over my heart? he should be able to put his hand on my head? we're going to have to go through the whole human anatomy with a series of -- of cases. and you haven't said anything about what you want exactly with respect to audible prayer. what type of prayer? when? how loud? what exactly do you want to start out with? kretzer: yes, let me touch -- justice alito, start with audible prayer. yes, prayer, as we -- should be non-disruptive, audible prayer in the ordinary style of how people pray. when, to answer your question directly, justice alito, is after the in -- the pastor and the warden come in together after the drug team has already
inserted the iv line. so justice alito: and you want it throughout the execution? you want it up to the point where the prisoner loses consciousness or dies? kretzer: yes. the pastor can step away. what they agreed to do in alabama is before -- after the prisoner passes, when the conscious -- the pastor steps away when the unconsciousness assessment is performed and then remains when the drapes are closed and removal and so forth. so the prayer, to answer your question, justice alito, yes, would be after the lethal injection begins and then until -- justice alito: okay. well, that's -- kretzer: -- the point in time he passes in a non-disruptive way. justice alito: -- that's helpful. so can you -- can you say anything to us to relieve us of the fear that we are going to get an unending stream of variations about both of these things, about touching different parts of the body, about the type of prayer, the -- the singing, chanting, number of people in the room? are we just -- is this just what's going to happen? the lower courts are going to have to deal with this on the eve of every execution, and
we're going to get these at the very last minute and have to decide them. the difference between the -- the factual information presented to us in these briefs and what we received in all of the previous stay applications is like night and day. kretzer: well, justice alito, i could talk about timing, and then i'll switch in just a second. with regard to timing, in mr. ramirez's case, the 1983 petition was filed a month in advance of the execution date. and the district judge entered a scheduling order when the motion for stay would be filed, the response/reply. so all those proceeded very much apace, and the fifth circuit ruled within a few days. so everything proceeded here on a listed schedule. when we go -- justice alito: well, how far in advance of the execution did it come here? kretzer: the fifth circuit, i believe their opinion issued on labor day. the court was obviously -- early that morning. i wrote the stay application the following day. the next day, the state responded, and i followed the reply that same day. so it all -- justice alito: and when was the -- how far in advance of the execution day was that? kretzer: i believe the execution date's a tuesday, the -- the 8th was a tuesday -- i don't have a
calendar in front of me -- but i believe that was correct. so i filed -- no, it was the 7th. so i -- the fifth circuit opinion issued on the 6th, the stay application was filed on the 7th, the state responded in the middle of the day of the 8th, and the reply was filed later that same day. justice alito: well, we get these at the very last minute and we're going to continue to get them at the very last minute. kretzer: well, i don't know that -- justice alito, that you necessarily -- i -- i don't know that you necessarily will get them at the last minute. i think it has to be remembered that mr. ramirez, starting back when his execution was first scheduled, started to file step 1, step 2 grievances. then the state change their policy. the state then proceeded to list these restrictions in seriatim in this piecemeal fashion that came from a letter from the general counsel and so forth. if the state is so worried about these things coming up in the last minute, all they have to do is actually tell us what the rules are. in other words, there's not a single thing in the prison manual that anyone can see or in the form that pastor moore was told to sign that says what he could or could not do. if the state would simply tell us what they want instead of having -- make us try to figure
out by guessing, these would not -- justice alito: all right. well, we can -- you and texas can argue about who did what when and all of that, and it's relevant to some of the issues. but, to get back to my point about the unending stream of . nations i take it what you said , is, well, each one of these is different, factually different; prisoners have different religious beliefs; each one has to be analyzed separately. different states different , execution chambers, different sizes, different religious beliefs, each one will present its own unique question. maybe that's the way it has to be. kretzer: justice alito, i mean, i'm sorry, i'm not an expert on religion, i don't know all the religions in the world, but i think similar concerns voiced in this court in the early religious freedom restoration act cases, in the church of lukumi and so forth, no -- even in the holt v. hobbs case, the question was specifically asked: are these issues going to bubble up one half-an-inch beard at a time? they're not going to present in
that order. i don't think any religion has striated that there must be a touch on this particular piece of the body. what we're talking about here is a laying-on-of-hands doctrine that the minister does with all of his congregants as they're nearing the point in time that they die. if some other inmate has a well-established, sincerely held belief and that can be -- bear their burden under rluipa on the first prong, then perhaps that will be or it will not be their justice alito: well, do you think in -- in rluipa a court can say you are whatever, you are a -- a catholic, and so i am going to see what the teaching of the catholic church is on this question? is that the way this is -- this is resolved? or -- kretzer: no. justice alito: -- can the prisoner say, well, yes, i'm a catholic, but i have my own personal beliefs about this? would we not have to honor that person's own sincere, individual, perhaps unique religious beliefs? isn't that the way rluipa works? kretzer: to answer your question, the first part of your question, justice alito, no, what you said is exactly
opposite to rluipa. no, you cannot inquire as to the centrality or ultimate correctness theologically of a -- justice alito: right. kretzer: -- sincerely held religious belief. i think the point was made in the tenth circuit in yellowbear that the question for federal district courts in that first prong of rluipa is really just, is the inmate trying to perpetrate a fraud on the court? are they lying to try to get some benefit they would otherwise not be entitled to in the secular context? once they do that, the burden shifts to the state. rluipa is written this way. and all the equities, the victims and so forth, were all taken into account and cognized by congress in the statute passed nearly unanimously over 20 years ago. chief justice roberts: thank you, counsel. justice thomas, anything further? justice thomas: no. chief justice roberts: justice breyer? justice alito? no? justice sotomayor? justice sotomayor: counsel, under the turner standard, a generalized security interest would have been enough to defeat a claim. rluipa changed that, and whether we like it or not, it requires the state to address each individual person's need.
and a risk analysis that talks generally about a compelling new is -- need is not the standard that rluipa sets. the standard is, is something that you're proposing going to interfere with this execution? now i looked at the pictures that i was provided, and the other side gave a bunch of reasons. they said it'll block the view. but i saw the picture of the prison, and the window at least by the foot doesn't block the view. so where you want to stand is not going to block the view. they have fears that a unknown pastor could -- and this goes to justice kavanaugh's concern -- that an unknown pastor could go to the iv line, could go to the manacles, et cetera.
but the manacles are nowhere near there. the minister has a person standing with him. i'm assuming that your argument is that every security risk they present is just not presented by these facts, correct? kretzer: correct, yes. justice sotomayor: and going back to the response that justice kavanaugh and justice alito have expressed, it's not us that have to worry about the individualized treatment. congress has told us that that's what petitioners are entitled to, correct? kretzer: yes. justice sotomayor: and prisons have to work in good faith to accommodate those needs? kretzer: they're supposed to, yes. justice sotomayor: they waited a month to tell you -- six weeks to tell you they wouldn't permit the touching or praying. that's not working in good faith is what you're saying? kretzer: i never heard, justice sotomayor, a word about no prayer until i got that letter on august 19. justice sotomayor: all right. so they can say what it is early
and tell people, if you have an objection, come in and tell us what you need within a certain amount of time, correct? kretzer: yes. justice sotomayor: that's what you've said? kretzer: yes. justice sotomayor: so they can avoid last-minute requests by simply setting reasonable guidelines, correct? kretzer: they could, yes. justice sotomayor: and acting expeditiously? kretzer: yes. justice sotomayor: they're the ones who waited close to the execution date, correct? kretzer: yes, justice -- justice sotomayor: that's your point? kretzer: yes. justice sotomayor: all right. thank you, counsel. chief justice roberts: justice kagan? justice gorsuch, anything further? justice kavanaugh? justice kavanaugh: i do have several questions. judge higginbotham said in his concurring opinion: "while lethal injection may seem straightforward, the actual administration of the drugs and pronouncement of death is both delicate and fraught with difficulties, as evidenced by the responses of regulatory bodies and the experience of this court with mishaps in execution by lethal injection. "in short, the complexities
attending the administration of drugs in the execution procedure and its failures expose the risks of non-medical hands on the body of a person undergoing the procedure.a why do you think judge higginbotham's wrong? kretzer: well, it's not that i think he's wrong, justice kavanaugh. these -- pastor moore is definitionally not a doctor. his hands would be on the body. so, in that sense, his -- you know, it would be non-medical hands on the body. the way judge higginbotham construed it, though, was no hands means no hands. it's a direct quote, i believe, from his opinion. and yet, we know that that would not be true under the state's own logic with a tdcj chaplain who has touched the -- i believe there's testimony that he touched the leg, the calf, so forth, for years. justice kavanaugh: and that goes to the risk question that i talked about earlier because that person has been an employee. but second question on sincerity, to follow up on justice alito's questions, this is a potential huge area of future litigation across a lot of areas, sincerity of religious claims, and how do we -- how do
we question those? some things that people have talked about are the incentives someone might have to be insincere, behavioral inconsistencies -- justice thomas's questions got at that with the complaint -- the religious tradition of the practice. are those -- what do we look at to check sincerity? because that's a very awkward thing for a judge to do to say: i want to look into the sincerity of your claim, but our case law says we must do that. kretzer: well, justice -- justice kavanaugh: how do we do that? kretzer: yes, justice kavanaugh. i would argue, yes, while federal judges, you know, obviously would be very worried to look at the religiosity, the correctness of the religious aspects of the claim, federal district courts judge sincerity, in a manner of speaking, all the time. credibility determinations are made by district judges in every motion to suppress. justice kavanaugh: it's a -- it's a little more awkward, i think you would admit, for a judge to tell someone you're claiming that you believe this is a matter of religion, but i think you're lying. that's -- that's hard to do. do you agree with that? kretzer: well, i don't know that i do, justice kavanaugh. i mean, district judges have to, unfortunately, say they believe
in a suppression hearing, for example, a case agent or any other manner of law enforcement witness is not telling the truth. many experts testify in white collar cases on causality. expert people have to testify about things all the time in a district court on a daubert challenge, for example, and has to decide whether or not it's sincere. maybe not sincere as to religious beliefs to be sure. it might be a somewhat more rare circumstance. but those sort of credibility determinations are made on a daily basis in federal courts in this country. justice kavanaugh: okay. two more. sorry, i'll try to be succinct. justice sotomayor is quite right in saying that congress put this standard in place, the strict scrutiny standard. i think the difficulty of applying it is one of the reasons some of us in fulton had concerns about what might replace smith. and this case is a good illustration, i think, of the problems that can arise trying to apply a strict scrutiny standard. but just on the relationship of compelling interests versus least restrictive alternative, and when it goes to risk, i mean, i'm still having problems
with, they're saying we should keep the risk to zero, and you're saying, no, you should tolerate a little more risk because alabama does it. or because other states do it. and i just, as a judge don't , know. you might be right. they might be right. i don't know of a neutral principal, how to resolve that where they're saying we want the risk lower, we want the risk to be lower than our next-door -- or the state, state, another state. kretzer: justice kavanaugh, i think i'd have to very respectfully disagree with the premise of that last part of the question, which is that a non-tdcj employee chaplain necessarily carries with him some appreciable additional level of risk. i can say i attach -- justice kavanaugh: okay. can i stop you right there? i don't see how you can say that. there's another human being, to go back to judge higginbotham, in the execution room in about the most fraught situation anyone could imagine, especially if the person is, by definition, close to the inmate,
spiritually, friends, and they're about to die and be put to death. and the idea that we can predict how another human being will react in that situation and be sure, as you're saying, that the person is not going to react in a way that they would never react in any other situation, i just don't -- i don't know. you might be right and -- and we'll see, i guess, if -- if you prevail here, how this plays out. but it's not my decision, and as a judge, i don't know how i prioritize your assessment of that over the state's. kretzer: well, the way i can say that, to answer your question, justice kavanaugh, you asked me how i can say that. the way i can say that is that it is incredibly well documented, every single time anyone, a minister, a reporter, or anybody else goes to see a prisoner, pastor moore has been going to see, for example, mr. ramirez for five years, longer than i've been his lawyer -- justice kavanaugh: i'm not questioning -- kretzer: -- there's never been an incident. justice kavanaugh: i'm sorry to interrupt. i'm not questioning the current pastor at all involved in this case, so i don't mean to do that. and the last question, i'll
finish with this, is just the victims. i mean, we haven't mentioned -- we've gone a long time and we haven't mentioned the victim's family, who filed a brief here, and they've had to go through now 4.5 years of postponed executions. and their brief says: "in maria's eyes, ramirez gets all this publicity like he just won a gold medal, while she and her family are going through all this pain and suffering each time they're told ramirez will be executed, only to have the courts put a hold on it. you know, we have to think about the victim's family members, too with this, oh, it's going to be a stay here and a stay there and a stay there. and each time, there brought to the execution room decades after the crime where their father , was, you know, beaten to death and stabbed to death in a parking lot. i mean, i just think we -- that's all by way of saying that as a legal point to it, if we're going to rule for you, i think we need some clear lines so, as justice alito says, we are not
putting future victims' families in the same position of time after time having these delays. kretzer: justice kavanaugh, i have nothing but the greatest sympathy for the family of pablo castro. i grieve for them. i feel horribly for their loss. victims certainly do have an interest in -- public interest in the proceedings and finality of executions of judgment and so forth. all those victims' interests were specifically taken into account by congress when it passed the rluipa. and that was not even a newfangled concept 20 years ago some now when the rluipa was passed. the brief the amicus of the becket fund filed where they showed the historical examples of where pastoral or spiritual guidance has been given throughout history to people as risible as the nazis, and the point was made it was not a luxury afforded for who those people were but something that religion affords in larger society because of who the society is. and congress accounted for all of that when it passed the
statute, and not how the -- and that is how the equities are to be balanced out. justice kavanaugh: thank you. i appreciate your good answers. thank you. chief justice roberts: justice barrett? justice barrett: i just have one question. so justice kavanaugh has been asking you about how strict scrutiny would apply here, and justice kavanaugh said that the compelling interest that the state has is in the reduction of risk because, understandably, the state wants that risk to be zero because the consequences of a botched execution are quite high. i think how we define the compelling interest matters a lot for how the strict scrutiny analysis plays out. so i'm just wondering how you would characterize the state's interests. would you characterize it the way that justice kavanaugh does, or do you have a different articulation of how you think the compelling interest should be described? kretzer: i think i would characterize it, respectfully, slightly differently than justice kavanaugh did, justice barrett, and that is that the compelling interest is in an execution that is done in the humane way, in the safe way, for all the circumstances that have been discussed here and further in the briefs. if the state, though, is going to -- the compelling interest, to answer your question directly, is directed towards how they
have chose to frame the execution for instance, the size , of the execution chamber. the prison chose the size of that execution chamber. under rluipa, a prison entity can be required to spend -- justice barrett: well, that's not -- the compelling interest, right? that -- that goes to how the state is structuring the execution and how it chooses to carry it out. i mean, the compelling interest may be prison security or, you know, as you say, the humanity carrying out the execution in a humane and safe way. but the size of the execution chamber, i don't think, is the compelling interest, right? kretzer: i would agree. the compelling interest is in the safety of -- i mean, that's what prisons do. they're risk management operations. i guess one could construct a perfectly safe operation where no one -- lawyers, reporters, anybody -- was ever allowed to see an inmate. prisons are tasked with managing risk. one has to show the id and a background check and paperwork and so forth, which the state is free to and did and is doing, of any pastor who wants to come in for these circumstances. so, yes, the state absolutely has a compelling interest. i embrace it completely. and yet, that compelling interest, if they're going to
then go to the next step, the state, it's not that they could not necessarily do something different than other states or the federal government is doing, but -- justice barrett: but you're talking about least restrictive alternatives. i just wanted to know -- kretzer: okay, yes. justice barrett: -- about compelling interest. you answered the question. thank you very much. kretzer: yes. chief justice roberts: thank you, counsel. mr. feigin. feigin: thank you, mr. chief justice, and may it please the court: as the submissions to this court, including today, reflect, there are continuing factual disputes on many issues that we think ultimately warrant a remand. and we'd like to think that better explaining the federal experience may be helpful for further review. we agree that texas can vindicate its compelling interests by substantially limiting physical contact with the inmate and vocalization by a spiritual advisor in the highly
choreographed and sensitive execution procedure. but our recent experiences suggest that a categorical ban, like texas appears to have, isn't the least restrictive means for doing so. to justify such a ban, texas would have to offer -- its experts would have to offer state-specific reasons why it's necessary. i'm happy to take the court's questions, but one way in which i might be a little helpful is just to tease apart the word "execution," which i think is just used as an overarching term in both some of the briefing and especially in media reports. there are really two relevant phases that occur when both the inmate and his spiritual advisor are in the execution chamber together, separated by -- before the drugs are administered and during the administration of the drugs.
and, obviously, the second part, which, in our experience, takes about five to eight minutes, is the more sensitive portion of the procedure. so we do think it's helpful to think about this case in terms of maybe a little bit like a box. he's making two claims, one for physical contact, one for vocalization. and there are two parts, as relevant here, on the procedure, one before the drug and one during the drug. we think texas has a very strong argument to resist physical contact during the administration of the drug. and we have not allowed that. we think, conversely, that petitioner has a fairly strong argument for vocalization before the administration of the drug. in fact, if you look at page 16a, paragraph 11 of the lumpkin declaration, i don't think they even really address why they couldn't accommodate that.
and then the other two boxes, vocalization during the administration of the drug -- and i can talk a little bit more about that later -- and physical contact before administration of the drug are a little bit more indeterminate and could benefit from some further factual findings. i apologize, justice thomas. you appeared to want to ask a question. justice thomas: well, i think you've come close to answering it because i'm interested in what would be precisely in this context, the state of texas, you talked generically about it what , would be the least restrictive means in this case? feigin: well, your honor, i can't answer that question definitively, in part because i really do think it depends on some factual circumstances that i don't know and certainly aren't in the record. i can share what the federal experience has revealed. we have -- although it isn't the way we would have necessarily
ideally set up the procedure, we've allowed vocalization essentially throughout. obviously, someone can't interrupt the marshal while they're announcing the judgment or when something -- someone else is speaking. but we've allowed vocalization essentially throughout, through both phases of the execution. and we've allowed physical contact one time briefly before the execution -- before the administration of the drugs began. in every instance where we've had a spiritual advisor in the chamber, the spiritual advisor has been well away from the inmate as the drugs are actually administered. justice thomas: so do you -- and the next claim would be that -- you know, obviously a little more contact. but i want to ask you something that's different, okay? so we have rfra and we have rluipa.
normally, under rfra would rarely discuss the sincerity of beliefs. is that analysis different under rluipa, considering the opportunities for gaming the system? feigin: i think sincerity is quite relevant under, frankly, both statutes, justice thomas, but i think you're quite right that in the rluipa context, there may be particularized incentives for someone to falsely claim a religious belief. and some of those concerns are manifest here and would need to be developed a little bit further. obviously, it raises one red flag that something different was claimed in the 2020 litigation, and now we have the states lodging -- and that's what i was also citing earlier, the states lodging, and at page 25a of the redacted declaration,
you can see the representation is made that on the day he thought he was going to be executed, the only reason he wanted to meet with pastor moore was, he represented, because of the pending litigation, which raises further sincerity concerns. we took sincerity as a given here because the lower courts did. they, as we understand it, essentially just considered the narrow tailoring analysis and almost nothing else past that. justice thomas: thank you. feigin: but we do think that's a -- an issue here. justice thomas: thank you. justice sotomayor: mr. feigin, what is insincere about -- there's steps to this. there's a certain amount of time in which an inmate is given with his family, correct? and presumably with the pastor if he wants it before the execution? correct? feigin: yes, your honor. justice sotomayor: and here he decided not to have the pastor there. correct?
feigin: i believe his -- if i'm understanding the declaration correctly your honor, i believe , his pastor was there but he chose not to meet with him. justice sotomayor: he wanted to meet with his family. how does that take away from his desire to have the pastor in the execution chamber when he's dying? because the whole purpose of the religious belief is that you should have a pastor to help guide you to the other place. feigin: so, your honor, i am not suggesting how a court should come out if it considered these facts. i am simply suggesting that given the combination of facts and, in fact, petitioner in the reply brief said he would welcome a hearing at which he can have a chance to explain or maybe even cross-examined -- justice sotomayor: do you have any reason why we shouldn't order -- enter an order like we did in murphy, which is send it back, let these issues be threshed out, but let texas decide whether it wants to
execute him in the meantime? because it does seem as though sending it back would cause delay, but it's within texas's freedom to choose to accommodate him and go ahead, correct? feigin: well, your honor, i think essentially we don't , disagree that the court should simply remand. i'd add that there's been no dispute with the representation in our brief, so i take it to be correct under texas law, though i'm no expert in it, that pages 32 and 33 of our brief, that under texas law, there'd have to be a 90-day waiting period between a court setting a new execution date and the actual execution, which means there would be at least 90 days to develop a further record on some of these issues. and also, regardless of whether there was proper exhaustion here or whether the absence of
exhaustion could be excused as unavailable, i do think there are some continuing factual matters that the parties might be able to work out between themselves as far as exactly what petitioner is requesting and exactly what he would be satisfied with and how far the state can go to accommodate that. that's exactly why exhaustion is so important, because it not only allows for some consensual resolution but might really crystallize the dispute into a dispute of a much smaller nature, either were just talking about one of the boxes i mentioned earlier, or maybe even just a small -- justice sotomayor: that seems -- useless here because they didn't give a response for six weeks. feigin: well, your honor -- justice sotomayor: they never attempted to engage in
accommodation. feigin: well, your honor, i think that goes to whether the grievance process was properly exhausted and whether they were on notice that there was specific requests for vocalization and at what point petitioner was aware that that would be limited, which are also factual issues that could be explored. but and perhaps i am being , overly optimistic about the degree of accommodation that could be reached between the parties, but i do think that further development during at least that 90-day period and possibly longer -- as you noted, it's obviously under texas's control when it decides to set the execution date and carry out the execution -- some further degree of development in the lower courts would be tremendously helpful, not only so the courts can properly resolve this, but also for purposes of the parties themselves. justice kagan: mr. feigin -- chief justice roberts: mr. feigin -- go ahead. i don't understand how the prison officials and then judges are supposed to assess sincerity. i mean, it is certainly
understandable that as death approaches, inmates may have, you know, different religious views than they did before and want to take those into account. i mean, let's say a week before a prisoner comes in and says: i want to become a member of a particular church because i think i, you know, need that to be saved. end of period, the training the , whatever, the initiation is three months, and it's very sincere. what happens then? feigin: well, your honor, if a court believes it's very sincere, i'm not -- chief justice roberts: we have no reason to doubt the sincerity. feigin: well, i think that's somewhat how the lower courts took this case. i think it is difficult to determine sincerity. it's nevertheless a requirement the statute -- chief justice roberts: even if -- he says, you know, the process for me to reach the point under which i feel that i can, you
know, the religion would benefit me is three months? feigin: well, your honor, i think there are -- if i could take this out a little bit and just talk about the universe of religious claims for a second, this is a particularly, for reasons you just mentioned, difficult subset of that. but, just generally, i think it is a very robust requirement that courts have been able to use to eliminate certain frivolous claims, like my religion requires me to be a marijuana distributor or something to that effect. i think it gets somewhat more difficult, your honor, in -- in this context, and i -- it might well require something like an evidentiary hearing here. and i think there will be cases in which sincerity has certain red flags on it. and i think this case may or may not be one of those, but in a case where it does appear that the inmate has a sincere
religious belief the court would , have to proceed to the further steps. chief justice roberts: thank you. justice kagan? justice kagan: may i ask more about the bop experience? i mean, as i understand it, there were 13 recent executions, in 11 there were spiritual advisors there. you said that all of them, you allowed vocalization throughout the process, but in only one was there touching, and that before the drugs were administered. is that basically -- did i get that right? feigin: yes, your honor, with -- with two very small caveats. it's a little bit unclear, just because no one was focusing on this when they made their records, it's a little bit unclear whether all the vocalization included vocalization during the administration of the drugs. it may have; it may not have. and also i think in one case it was just conversation before and not actual -- justice kagan: here's what i would like to know.
i guess i would like to get a little more texture about how the process played out. in other words, you know, when you got these requests, what you , being the bop, what did the bop do? were there discussions? were there requests that were rejected? how does this all get managed in the experience of the bop? as i understand it, none of these ever came to a court. is that right? i mean, they all came to report, -- to a court, but not with respect to the religious claims. feigin: that's correct, your honor. there were some rfra claims with the recent executions, but they didn't relate to this specific issue. justice kagan: so how does this all get done? feigin: essentially, your honor, we resolve them informally. we have discussions with the inmates and/or their spiritual advisor about what it was that they were proposing and internal discussions about what could be accommodated.
i don't think we accommodated every single request that was made. justice kagan: what kind of requests did you reject? feigin: your honor, i'm not aware of any specific requests that we rejected, but my general understanding is there may have been requests that we did not -- i don't want to -- my concern is representing to the court that we accommodated everything that was requested of us. i'm not certain i could make that representation but everyone , was clearly satisfied enough that we avoided last-minute litigation. justice kavanaugh: there was no touching, right? feigin: there was no touching during -- justice kavanaugh: so if someone had requested touching like petitioner -- justice kagan: there was touching in one; is that -- is that correct? feigin: there was -- may i, your honor? justice kagan: there was -- wasn't there communion given in one and the use of holy oils? feigin: well, your honor, our recollection of that one is a little bit different from father
o'keefe's recollection of it, our recollection is there was at least some touching, but that was during the period before the administration of the drugs. and we don't think it was communion in the sense of giving someone a wafer on the tongue or anything to that effect. chief justice roberts: thank you, counsel. justice thomas? justice thomas: no. chief justice roberts: justice breyer? justice alito? justice alito: yeah, mr. feigin, i do have a number of questions. rluipa, like rfra, like the pre-smith free exercise jurisprudence of this court requires an individualized determination. that's been the law for a long time. rfra's been on the books for a long time. it's a completely regrettable -- completely workable standard. it is regrettable it wasn't extended to the free exercise clause but it is individualized. and what would be most helpful here, i think, is if we could at
least identify sort of a gold standard, not to preclude individualized variations, but something that will generally be sufficient to take into account religious demands regarding the two things that are at issue here, touching and vocalization, and accommodation of the state's interest. and we could look to the bop, doesn't get to specify what the first amendment requires or what rluipa requires, but it's a starting point. in so if you -- you've said what has happened in the past. if there are federal executions in the future, what will the bop do? will its policy be no touching during the execution, vocalization allowed throughout execution so long as it doesn't , interfere with other communications that have to take
place? feigin: your honor, i don't thank i can't quite represent , accurately under any circumstances exactly what bop -- justice alito: all right. that's unfair, an unfair question. so let me look back. that was what bop apparently thought was appropriate during the executions that took place last year. feigin: well, your honor, i want to be a little bit more nuanced about that. i think what the bop was doing was making individualized judgments about each particular case and then were kind of mapping out a -- how that shaped out if you look at the entire universe of the 13. justice alito: well, i wonder if you could be a little more helpful. what does the bop regard as sufficient to satisfy its interests in security and in having executions carried out without any interference? feigin: well, your honor, if we
wanted to have the risk be absolutely zero, there would be no spiritual advisor in the chamber whatsoever. however, bop was able to carry out 11 executions with a spiritual advisor in the chamber. it had a security person next to the spiritual advisor at all times. everything was -- the position of the spiritual advisor varied with the phase of the execution, as i have described earlier. the bop does do some auditory monitoring during the administration of the drugs, in particular, listening for any drip from the iv lines. and it is also listening for a particular snoring sound from the prisoner that would indicate the pentobarbital is working as it is supposed to and it -- the chanting and praying sometimes could interfere with that. the bop may do with visual and
ekg monitoring and nothing went when they did that, fortunately. -- went wrong when they did that, fortunately. the bop, i think, did not get a request to physically touch the inmate during the administration of the drugs. i think they would have very, very substantial concerns about that because of the risk of either advertent or inadvertent disruption of the iv lines. that risk may be low, but the harm, as justice barrett was mentioning earlier, would be extremely high. also, unlike an actual prison employee like a state or federal , chaplain, the outside spiritual advisor would need to be removed if the medical team had to come in, and that in itself could cause delay or problems. and frankly, your honor, i also
think blocking the witnesses' views, which, you know, now you're requiring two people, the outside spiritual advisor and the security person, is a legitimate concern here because one of the purposes of capital punishment is to provide some closure to the victims. and, of course, we believe the inmate's family should be able to witness this as well. and blocking either of them from fully viewing the inmate at the time of the execution is an important factor. justice alito: all that is helpful. now, to follow up a little bit, we have a picture of the execution room that texas uses. i don't know whether the execution room that the federal government has is a matter of public record, anything about it, but can you tell us whether there's anything that is materially different about the room that the federal government uses or the procedures that would suggest that the
considerations in texas should be different from the considerations in terre haute? feigin: as to the chamber, your honor, ours has about twice the square footage of what i understand texas's is, which is what enables us to have the spiritual advisor about nine feet away during the administration of the drugs. before the administration of the drugs, the spiritual advisor was advised to stand at a line that's taped on the floor that's about 28 inches away from the gurney. i don't know that the precise procedures we've used there would be feasible for texas with its smaller chamber. i'm also not entirely clear on what texas's monitoring equipment exactly looks like or the positioning of its windows. we have separate galleries for the victim and inmate witnesses, as well as the federal official witnesses, and then another one for the medical team.
and they all need to be able to see in for one reason or another. and then there's auditory monitoring equipment and medical monitoring equipment that may differ there as well that may raise some concerns too. justice alito: i'm sorry to take up so much time. if i could just ask one more question. it relates to something that, to my mind, is related to this, although it's a different subject, and that is i'm interested in bop practice regarding religious services during a typical weekend. so, on a friday, saturday, sunday, in a federal prison, what religious services, if any, are prisoners allowed to attend? do you know the answer to that? feigin: your honor, not -- not as i stand here today, no. justice alito: all right. thank you very much. chief justice roberts: justice sotomayor, anything further? justice kagan? justice kavanaugh: i have a few follow-ups. i share justice alito's desire
to have what i would call a bright line rule or something, some guidelines, if petitioner's position were to prevail here, and it's helpful, your explanation, of what happened in the federal executions. but i want to make sure, following up on justice kagan's questions, i understand what happened. there was no touching except in one, is that correct? feigin: that is our recollection, your honor, yes. justice kavanaugh: there was someone present in 11 of the 13? feigin: yes. justice kavanaugh: okay. and they spoke aloud in all 11 of those? feigin: in one of them, there appears to have just been conversation before the administration -- justice kavanaugh: okay. feigin: -- of the drugs. feigin: i'm sorry. in the rest of them, there was at least some prayer. and, again, because of the somewhat underdetermined word "execution," it's not entirely clear whether the prayer was
during the entire period or just during the portion as the witnesses were coming in and the spiritual advisor and the inmate were alone with the federal officials. justice kavanaugh: and if i'm interpreting you correctly, but correct me if i'm wrong, you have much more concerned you're , okay with someone being in the room or at least bop was, during these, okay with audible? it doesn't seem like you're okay as you stand here today with someone touching during the execution, putting to the side -- or maybe you don't want to put it to the side -- the question of what the execution is. feigin: well, your honor, just to be clear, i mean, i'm not quite sure i'd represent that we were okay with it. it was just bop was able to accommodate it. justice kavanaugh: okay. feigin: and i think bop would have a vastly greater degree of concern for the reasons i mentioned earlier about accommodating a request to have the spiritual advisor in physical contact with the inmate. i mean, if i could just
emphasize one thing that i think really came out in the gutierrez litigation after this court remanded, is that texas, you know, points out, and i think they point it out here but not to the same degree it's not just , a matter of not trusting a spiritual advisor. it's a very fraught circumstance. you don't know how someone's going to react in that circumstance. i mean i realize this probably , wouldn't happen to most people, but someone could faint, someone could stumble, and you could jostle the lines. that might or might not disrupt them. but, if that were to happen in the middle of the pentobarbital, all of the problems in, for example, the lockett execution in oklahoma were because the iv was going into the tissue as opposed to into the vein, and anything going wrong here would be catastrophic. justice kavanaugh: and then, to follow up on justice barrett's question and my earlier questions about the risk, the state's compelling interest in
reducing the risk to zero or as close to zero as possible given what we've mandated under rluipa, you said, i think, at the beginning, the state would need state-specific reasons to justify that. and i'm wondering how a state could say: we have a state-specific reason for wanting to reduce the risk to as close to zero as possible. feigin: well, i think this is where holt's and cutter's emphasis on substantial deference to prison administrators' expertise comes in. we certainly do not think that courts should be micromanaging prison procedures. but i think holt identifies the practices of other jurisdictions as at least another least restrictive means that the state needs to, in holt's words, give persuasive reasons why it can't follow.
so, if a number of other jurisdictions, and, here, the federal government and alabama, have been able to allow outside spiritual advisors, i think what texas would need to do but hasn't done yet and may or may not be able to do is to say things that are of the nature of what i was discussing earlier with justice alito: we have different monitoring equipment. our chamber is not the same size as the federal government's. we rely more heavily on certain types of monitoring than the federal government does. and i also think they could legitimately decide to tolerate a lower degree of risk than the federal government was willing to accommodate. chief justice roberts: justice barrett, anything further? justice barrett: yes, mr. feigin, i just have two quick questions. one is to follow up. i think justice kavanaugh was asking a very important question about how do we define the state interest. i feel like you gave him a lot of examples of least restrictive alternatives but maybe not the
compelling interest. i'm just wondering if it's legitimate to define it as trying to get to zero percent risk, because, you know, justice alito asked you about services on the weekends. i think, it's my understanding, i might be wrong. that bop and state prisons too do allow some religious services, perhaps because of rluipa. if they said we want the risk of prison rioting or fighting to be zero percent, that would permit the prison, right, to say there can never be any kind of prayer service or gathering. but, if the compelling interest were defined differently like, , for example, to say maintaining prison security, then that wouldn't rule out those kinds of gatherings. and so here, if the prison defines the compelling interest in saying like, well, we in alabama wants a 0% risk or we in texas were only a 2% risk, that permits them to altogether bar the spiritual advisor from the chamber, right, because there's not going to be any, you know, lesser restrictive alternative that's going to get you there.
it is inherently carries a risk. so how would the federal government articulate what the acceptable state compelling interest is? feigin: well, i think rluipa kind of presupposes that you can't ever get to 0% risk on anything for the reasons that you just mentioned, justice barrett. i do think courts are interfering a little bit too much under the holt standard if they're kind of micromanaging between not that anyone could , ever get precise empirical numbers but like 10% and 5% risk. but just to answer your question directly the question you asked , my friend directly, we think the compelling interest here in this particular context is in carrying out the execution procedure effectively which both , means making sure it goes correctly for the prisoner and also making sure the purposes of
the judgment are satisfied. and obviously even having a spiritual advisor in the chamber does create some degree of risk, even if they are nine feet away, but i think courts could probably set a minimum bar on risk tolerance. and one place to look is the experience of other jurisdictions. i think courts should be very hesitant outside of that to start suggesting that these kinds of things need to be allowed. but if you see that other jurisdictions are permitting them, it places under holt at least somewhat of a modest burden on the state to give some reasons, which would themselves get deference for their administrators, as to why they couldn't similarly accommodate it. and they may well have such reasons here. justice barrett: one other just brief question. justice kagan was asking you about how bop carries out these executions and determines its standards. and you said it was an individualized process with respect to each of the inmates.
presumably, though, bop had to make some decisions about standards that would apply to each one. like you mentioned there was tape on the floor and the spiritual advisor had to stand on the tape or that there would be a security officer present. was there any kind of discussion or consultation with prison administrators or experts before the 11 executions were carried out to decide, well, these are, you know, this is the minimum. they can't get any closer than this tape on the floor. feigin: your honor, i am not precisely sure why they decided on that specific distance. i think they wanted them close for -- want to allow them to be close for that portion of it, but not too close. the concern there was simply making sure that the security official would still be in position to try to stop the advisor from doing something that might interfere with the execution.
i don't know the precise content of the discussions that bop had ahead of time but there was clearly a great deal of thinking. even during periods where federal executions are in a moratorium, they rehearse this essentially semi-annually, what the procedures are going to look like. it's a very choreographed procedure with a lot of thought into it. justice barrett: thank you. feigin: sorry, mr. chief justice. thank you. chief justice roberts: thank you, counsel. general stone. stone: thank you, mr. chief justice, and may it please the court: petitioner has twice received steve -- received the extremely exceptional remedy of having his execution halted at the last minute. each time he litigates a right of execution date he receives another lengthy reprieve. this court should not countenance the delay of a fourth execution date.
ramirez claims that he has consistently sought the same relief, namely his pastor's touch and audible prayer throughout his piecemeal litigation. there are two problems with that assertion. first, it's false. ramirez disclaimed in 2020 that he wanted pastoral touch. and in april 2021, texas gave ramirez all that he had been looking for at that time, his pastor's presence in the execution chamber. second, ramirez' assertion makes his litigation conduct inexplicable. if ramirez was aware the entire time that he wanted pastoral touch and audible prayer, then he has no excuse for failing to timely raise and grieve those requests. ramirez tries to excuse both his failures to -- both his delays and his failures to exhaust by claiming he only learned he wouldn't be permitted touch or audible prayer in june and august of this year, respectively. again, false.
the state's execution procedures publicly available as of this , april, state that a pastor may "observe the inmate's execution." an observer's role is passive, not interactive. ramirez knew his pastor's observation and his pastor's participation were distinct because he himself distinguished them. ramirez stated in august that he assumed his pastor could not audibly pray, and he distinguished touch from presence in his 2020 suit. ramirez has delayed in seeking accommodations, reversed his litigation positions, and raised his claim seriatim, all for the purposes of delay. this court should put an end to these tactics once and for all. i welcome the court's questions. chief justice roberts: counsel, how would you deal with the hypothetical i was raising earlier, which is, you know, a few days before execution the prisoner says i have decided i need to convert to a particular
faith and the process takes three months, and there's a -- religion in which that is true, that it takes three months. what would you do? stone: certainly, your honor. so for purposes of -- and i assume that this prisoner is raising a rluipa claim and asking for a preliminary injunction against his execution? chief justice roberts: yeah, because it takes three months, and that's what his -- the faith that he wants to pursue takes. stone: well, your honor, first, i think the court would have to determine whether or not that was a sincere conversion. chief justice roberts: well, but right. that's what i'm asking you. how would you -- what would you do to make sure you've accommodated that concern? stone: the court would go -- go into a pretext inquiry as discussed in the rfra context in footnote 28 of hobby lobby. it would look into factors like, for example, how is this individual -- how has this individual behaved in the past? have they made any similar -- chief justice roberts: well, he had a conversion experience. i suspect impending death focuses people's concerns on religion in a way they may not have been before.
and with death imminent, he decided he needed to pursue this route to salvation. stone: on just those facts alone, your honor, it would sound to me that, with nothing else that the individual might , be seeking delay of his execution because several days beforehand he is requesting a multi-month process. but i think that would be a credibility determination and that would be -- chief justice roberts: well, but -- yeah, i understand that. but how would you do that? i mean, it is a factually plausible thing. i mean, people convert, and particularly in times of stress. there is a church that requires three months. maybe he's not sincere but how do you tell? stone: you look at other collateral circumstances, such as whether or not there had been previous contact with a pastor that, you know, sort of engendered a spiritual relationship beforehand, whether or not the person had raised similar claims beforehand and, if so, when relative to previous execution dates. whether or not this is, in fact,
the kind of -- whether or not this individual has brought other basically pretextual or baseless lawsuits, i think these would all be the kinds of facts and circumstances that would help a district court make the familiar inquiry as to whether or not basically they are being lied to, the same pretext inquiry that occurs in virtually every area of law. undoubtedly because this is a very sensitive area of law and a very sensitive area of human experience, it's going to require an examination of a lot of facts and circumstances around the individual. and it may be the case that district judges making this factual determination for the first time are going to tend to give some deference to an individual on the surface of things. but congress has placed that initial burden on the individual trying to show sincerity. so at a minimum that person has to start by adducing some proof that they have a sincere need. justice barrett: general stone, can i ask you, you just said that the april 2020 policy said that the prisoner could have a spiritual advisor observe in the room. could you direct me to where it says that? because i am looking at the policy and it talks about the spiritual advisor being present in the room. and i think that's a significant difference. so does it say observe?
stone: it's the april 2021 policy, justice barrett. let me get you that page. justice barrett: i'm -- i'm sorry. i am looking at the april 2021 policy. maybe you could get that for me. stone: of course. it's on page 149 of the joint appendix, of the joint appendix. in part d, part 1, it says, to read the relevant quote: "if requested by the inmate" -- towards the bottom it says "will be escorted into the execution chamber by an agency representative to observe the inmate cycle execution. justice barrett: okay. thank you very much. justice breyer: well, i mean, i have gone through -- or we have in my chambers the dates. and there is an argument about this. i mean, they say, look, in -- you used to allow spiritual advisors in. no problem. then you decided in 2019, no, they can't come in. so in 2020, after we got through with it, he says, please, let them in.
okay? and he doesn't say anything about laying on of hands because, you know, letting them in is better than nothing. you say, no, they can't come in. then we get to 2022, and he says, come on, let him in. and you say, okay, we'll let him in. and at that point they say: huh, pretty good, fine, and we want the hands and the audible prayer, too. that's what you used to do. and you say: ha, you didn't ask for that before. of course they didn't. they felt they couldn't get in at all. and so now you're asking for it. all right. the answer is no. all right. so here we are. and as i go through this, i think they have a point. maybe you have a point. what are we supposed to do, send it back for that? stone: two points, your honor. i think there are at least two clear places where mr. ramirez certainly should have had notice that he needed to look into this. the first one is in 2019, when tdcj first changed its policies --
giving you a front row seat to democracy. then you decided in 2019, no, >> you said there every day. you used to let the men, now they can't come in. and we have the case still, and, finally, it gets out of here, and you go back and, no, they can't come in. so, obviously, he says, please, let him in. and then, finally, when you change and let them in, he says, by the way, we would like hands plus -- i'm just repeating myself -- hands plus audible prayer. that's what you used to do. as i say it like that, it sounds
reasonable. as you say, you have a point. my question was what do we do about that. i have a question on thei have e merits. >> this courts rule is articulated in hill. and places the obligation on the capital inmate who is going to do so in a diligent manner. stating his execution. he is under that burden and a burden of bringing claims diligently includes a burden to investigate. justice breyer: you have any idea how many executions have there been? where they did let spiritual advisors in? united states, do it if you want to there was physical touching and there was audible prayer.
was the answer you -- answer zero? what was the answer about? >> it was a commonplace and executions in texas between 1982 -- >> in how many of those did the audibility and the physical touching create the execution going astray? are you aware of any? >> no. ? we have experience and there has never been a problem. that is what you think. i don't know if you think it without that is the best you can answer. >> i would add an important distinction is for everyone one of those circumstances, the individual is a employee. it is a correctional institution dealing with the choreographed area of a death chamber. there is a difference in having -- >> are you aware of any other states of an execution going
astray? >> no. we reached out to other states. this is very new. i'm not surprised. a low likelihood of occurring. it is catastrophic. justice barrett: given that catastrophic risk, the question that i asked mr. feigin and your friend on the other side about what the definition of the state's compelling interest is, could you give us yours? stone: of course, your honor. i think justice kavanaugh accurately or almost accurately summarizes that we're attempting to minimize risk almost all the way to zero as much as we reasonably can. i take the point that you have if that is the state's compelling interest going forward in all sorts of contexts, that that sounds an awful lot like a license for the state to just reject religious claims. i think the court's articulated difference in holt v. hobbs and other similar cases and the sort of span of that deference is what does a lot of
work in this case. so, for example, this court rejected deference to these sorts of claims of minimizing risk in holt precisely because the policy was under-inclusive, it seemed incredibly hard to believe that contraband could be held in a half-inch beard, situations like that. to the extent that you have a correctional institution saying that we have to ban -- we have to ban all church services because there's too high of a chance of a riot, it sounds in the hypothetical just a very bad ends and means fit between the thing that was ultimately chosen and the pursuit of the sort of minimization of risk or at least a policy that appears to be sacrificing a whole lot of potential rfra rights. and in that case, i think that the court's deference to the stated security concerns. you've got this very over-inclusive sort of policy. and these over-inclusion and under-inclusion analyses are very typical of when this court
says, well, we defer to prison administrators as experts, but we're not sure about this particular policy. i think that would take care of at least a lot of the concerns that you have. justice kavanaugh: you have to think about the risk together with the harm, correct? stone: that's exactly right. justice kavanaugh: so the risk is low, but the potential harm, as you used the word, and i think mr. feigin agreed with this, catastrophic or some adjectives similar to that. those two things need to be thought about together. stone: that's exactly right, your honor. texas being unwilling to tolerate a very small amount of risk in the death chamber, where a tiny amount of risk can lead to a situation that would create intolerable pain for an inmate or an intolerable amount of reliving of suffering for a victims families. justice kavanaugh: what about mr. feigin's description of the experience and then our effort to balance the competing interests here under a test, the strict scrutiny test, that is difficult to apply here, as i think everyone would acknowledge? the advisor's allowed in the room. there can be audible prayer
before the drugs are administered. no touching. is that something texas could live with? stone: one of the major problems was alluded to in the logistics of the federal execution room is that it's just much, much larger than texas's. i might point out that's one major difference because, in texas, we can functionally only have about three people. it's about a 9-by-12 room. most of one wall is taken up by windows for the witnesses on behalf of the inmate's families. the other is witnesses of the victim's. on the other side, we have a large window for the medical team to view and iv lines coming in. so the much smaller space makes it much more difficult to navigate. in terms of the sort of -- in terms of your sort of general point that i think you're getting at as to whether or not texas might be able to accommodate something that was significantly less intrusive of a request, texas is obligated under -- under rfra and rluipa to take these prison requests one at a time. in the event that someone said, i want a five-second blessing
and then my pastor can step outside, that would be obviously something that would be much less intrusive. that would bear much less of a risk and that texas would have to have an awfully good reason to refuse. the reason why that doesn't work here is because mr. ramirez is insistent that he's wanted the same thing the whole time. he's wanted touch and prayer the entire duration of the execution from beginning all the way to end. justice kavanaugh: well, that goes -- justice kagan: the size of the room did not prevent many, many chaplains in texas's history from providing both touch and prayer is that right? stone: no, justice kagan, but it did indirectly in that when we had chaplains in the room, we didn't need to have another security officer in the room. and so the fact that we have a volunteer coming into the room, the chaplain has to -- now has to be accompanied by a security officer, which required us to take out the warden. so it did change -- it did change how we had to run the room, but the chaplain himself did not add to the risk, no. justice kavanaugh: that was, again, the state official, right? stone: yes, your honor.
justice kavanaugh: that's different -- at least to me, that's a somewhat different situation. it may not be to others. you were switching, though, to sincerity in this case, and i get you have a whole argument about sincerity in this case, but we may also have to opine on compelling interest and least restrictive alternatives. just on the -- looking to other states, how do we do that? you know, alabama does it. why can't texas? that is the argument. i'm simplifying, but that's kind of the argument on the other side as to some of this. your response? stone: sure, your honor. in particular with alabama, i think the court, however it's going to set down rules, needs to make sure it's really engaging in an apples-to-apples comparison. the request in alabama was much briefer. i understand that it was a brief touch with holy oils to essentially administer the last rights, and that's something significantly less intrusive risk-wise than what's being presented in texas. all else equal, if someone in texas were to -- if someone in texas were to present that same request as in alabama, the fact alabama was able to provide it would be a piece of evidence, not necessarily dispositive, but at least something to the extent that alabama has a similar execution protocol and a similar
execution room. justice kagan: general, why isn't the inquiry really exactly how holt laid out the inquiry? in other words, you know, in holt, the prison officials came in and said men can put contraband in their beards and we have a security interest in preventing that. and what the court said was, you know what, i mean, that might be, but we're going to look around at other states, see what other practices are. to the extent most other states or many other states can deal with the security interest in the way that also respects religious interests of the inmate, then we're going, essentially, to, you know, say to the state why not you too? and in all of that, there is an appropriate level of deference given to prison officials, but there's also an appropriate level of respect given to the inmate with religious convictions, as commanded by congress.
stone: i don't think we're very far apart, justice kagan. i think that to the extent that we're dealing with many states that are similarly situated as in having the same kind of execution protocol and similarly substantial execution rooms, that if many states had that same experience that, in fact, there was not a risk or the risk didn't manifest after a long period of time, that would be powerful evidence that a given state, for example, texas in this case, couldn't legitimately say we can't do this without unacceptably adding to our risk. i was speaking more specifically that to the extent that this court is going to look at other states as like examples for purposes of engaging exactly that kind of state comparison that you bring up, justice kagan, that the court's making sure it's getting like things like. and the kind of fact that might fall by the wayside for purposes of comparison is the federal government has just a much larger chamber. and that's an important fact. whether or not it should be sufficient to justify a policy difference in one or many cases, that's obviously going to be case-specific and up to this court. but that's what i sort of was exhorting, was that you can't
take one particular institution or one particular execution as dispositive for that analysis. justice sotomayor: counsel -- justice alito: if mr. -- if mr. ramirez is going to be executed, would a new execution date have to be set? stone: yes, justice alito. justice alito: and that would -- that would have to be at least 90 days from when? stone: as a practical matter, your honor, first of all, a date has to be -- a state court has to be petitioned to set another date. no state court in texas is going to do that while this court has a case on the merits pending regarding you have an execution. after that occurs, it would be at least 91 days from when the trial judge is -- grants the motion. as a practical matter, it tends to be about four to seven months, as this court could see \months as this court could see regarding mr. ramirez's dates. justice alito: and would there be any reason why mr. ramirez could not exhaust any grievances he has about the way the execution will be carried out during that period? stone: well, your honor, i believe he actually -- so he hasn't exhausted either of the two as of right now. the exhaustion came after he'd
filed loss -- the -- his lawsuit regarding physical touch. so i believe, if that were dismissed for exhaustion, that would be without prejudice or at least with leave to refile based on the district court's analysis of that. the other audible claim -- audible prayer one, he's had notice of that for more than 15 days. this court in woodford has noted a prisoner has to engage in exhaustion proper, not just exhaustion simpliciter. and because tdcj's consistent policy is that you have to raise a first step grievance within 15 days of the arising of the problem, his refusal to do so would mean he couldn't exhaust that one. justice sotomayor: counsel, i understand that prisoners -- you don't have any rules that say prisoners cannot pray out well during the execution, correct? >> know, your honor. justice sotomayor: all right. so you tolerate their noise. number two, you were talking about the fact that you didn't understand his request in -- in june to "touch and pray over me," that it would be verbal.
how was he supposed to understand from the word "observe" in your april -- in your april 21 change of execution policy that "observe" meant no touching and no praying? observing, it had happened before. so all i'm suggesting to you is you can defend your position. he's defended his. to me, prayer, silent prayer, you don't have to ask permission for. i suspect that many of your people in that room, even though they're doj employees, also pray silently, and no one would question that their prayer would be in their head. so all i'm suggesting is lack of clarity exists on both sides,
but you can fix yours by making your rules clearer. he tried to fix his by filing a grievance less than a month, weeks after you announced your policy on may 4. you returned his grievance saying your spiritual advisor can come. weeks later, petitioner's counsel e-mails you and asks you if touching will be allowed. june 11, three days later, petitioner files his grievance and says "allow moore to touch and pray over me. we deny that almost a month later, july 2. and on july 8, he files a grievance, but you don't respond to that over a month later. what were you doing six weeks later? stone: your honor, if i recall correctly, we responded in 36
days. tdcj's manual state that these grievances can take up to 40 days to respond. we try to be faster. tdcj receives quite a few -- justice sotomayor: what was so slow -- why were you so slow here? the execution's going to be in september. if you don't want there to be delay, what took you so long? stone: well, your honor, tdcj still responded within the amount of time that the manual says -- justice sotomayor: yeah, but at some point, that becomes an effective as a remedy if you're going to butt up against the execution date purposely. stone respectfully, your honor, : i think that means that ramirez was under an obligation to bring his grievance earlier. at a very minimum, passing by the public announcement of the changed protocols, passing by the fact he had notice of everything he would have needed to bring his rluipa lawsuits in 2019, he received actual notice in the form of his returned grievance saying you may have your pastor -- justice sotomayor: on may -- in may. stone: may 4, i believe, that's right. justice sotomayor: and within weeks he filed his grievance --
stone: he's in may -- justice sotomayor: -- in the same amount of time that you took to deny it. stone: he's in may 2021, your honor, and he has a september execution date. he waits to file his first grievance not may 6th, 7th, 8th, 9th. he waits until the middle of june. so he takes a third of the time he has left for purposes of figuring out whether or not he's entitled to the extremely exceptional stay of an -- of an execution at the last minute. he spends it not grieving. then he gets a grievance in. then tdcj takes much less than the 40 days back. justice sotomayor: thirty-six, four days less. thirty-six days. stone: in the first return, in the return of the june grievance, i believe we -- we received it on the -- on the 14th. we returned it on july 5 for that first step grievance, so far faster than 40 days. we returned it certainly diligently. then he files a step 2 on the 8th. and then we end up filing 36 days -- we end up returning it to him 36 days later, and he's already sued. at a bare minimum, if -- if mr.
ramirez thought that the grievance process was unavailable, which he'd be incorrect about legally and descriptively, at a minimum, then he shouldn't have waited until the very end to bring his lawsuit. if he was going to go and file a lawsuit regardless of whether or not he'd received a second step grievance response, then he should have done everyone a favor and sued in may. chief justice roberts: thank you, counsel. justice thomas, anything further? justice thomas: no questions. chief justice roberts: justice breyer? justice alito? justice sotomayor? justice gorsuch? thank you very much. rebuttal, mr. kretzer. kretzer: yes, mr. chief justice. i think perhaps one of the most alarming things that my friend general stone said in his argument was that the tdcj now has the affirmative power under their logic to front-run, impede, cut off, whatever you want to call it, the ability to file a 1983 case by their delay of the level 2 exhaustion.
the three most catalytic pages of this entire record and the lodged materials, 11, 12, and 13, it's also at page 53 of the joint appendix, and this is where mr. ramirez filed -- this was in june that he said the "and pray over me" language, it was denied in boilerplate on the august 19 -- 16 denial -- july 2. this is on page 13 -- has the exact same language. someone literally just took the same typewriter and put the exact same thing and stamped there on august 16. it sat there for six weeks. this page 13 appears in the lodged grievance file. it's not in the joint appendix because it was never received by the attorney. in other words, tdcj, mr. stone said they can take up -- we returned it in 36 days. we have 40. under their own internal protocols, they could give themselves another 40 days to respond to it, in which case they would have returned the level 2 grievance after mr. ramirez was already executed. that is the implication of how
they are trying to construe exhaustion in this case. and there were several questions to me in my opening about what would the larger implications be for other cases. if this court adopts mr. stone's logic, i predict you will see the word go out to prisons across the country that they now have this wonderful tool to insulate their policies, whatever they may be, from federal review under 1983 because they can put off the level 2 grievance as long as they care to. i would point out -- justice kavanaugh, you asked me in my opening about the risk of, as you perceived, the non-tdcj employee chaplains being greater than tdcj employee chaplains. i would just point out that the drug team members are not tdcj employees. and the botched executions you've heard about from both sides, most famously mr. lockett in oklahoma, those botched executions were apparently caused by these individuals who were not tdcj employees. if the real concern is the compelling interest, the safety of -- the security protocols of the execution, i would submit
history has shown that it's these non-tdcj employees -- non-prison employees, in these other cases, that have caused these executions, not anything caused by any chaplain. there simply exists -- as far as everyone has looked for a hundred years, justice breyer or longer, there is not a single instance of any chaplain ever causing any such disturbance. chief justice roberts: thank you, counsel. the case is submitted. >> c-span is your unfiltered view of government. funded by these television companies and more including cox. >> cox is committed to providing eligible families access to affordable internet. bridging the digital divide one connected and engaged student at a time. bring us closer. >> cox supports c-span as a public service along with these other television providers,
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