Kavanaugh voted to stay an execution over barring a Buddhist priest but denied delay for Muslim Imam

The newest member of the United States Supreme Court Brett Kavanaugh has explained why he voted to stay an execution for a Buddhist death row inmate who was being denied a spiritual leader in the death chamber, but refused to do the same for a Muslim man.

Kavanaugh voted to allow a delay for Patrick Murphy, 57, of Texas, a Buddhist man who was told his Buddhist priest could not accompany him during his final hours.

However, he voted against allowing a delay for Dominique Ray, 42, of Alabama, who was executed in February without his requested Imam at his side. 

Kavanaugh said in his writing on Monday that it came down to a failure of Ray’s legal team to raise the issue of equal treatment based on religion under the First Amendment, which Murphy’s defense did, and he was granted a delay in his March execution in Texas.

In a rare move, Supreme Court Justice Samuel Alito responded to Kavanaugh by issuing a new statement in the case of Murphy on Monday, arguing that the stay should not have been granted in either case.

Murphy is still alive today, and his execution has not yet been rescheduled, according to online records published by the Texas Department of Criminal Justice.

Murphy was a part of the group called the ‘Texas Seven’ who killed a police officer after escaping from prison in 2000. Murphy was in prison serving a 55-year sentence for aggravated sexual assault.

In his stay of execution case, the state of Texas argued that only chaplains who had been extensively vetted by the prison system were allowed in the death chamber and that while Christian and Muslim chaplains were available, no Buddhist priest was.

The high court ultimately granted Murphy a temporary reprieve in March. At the time, only Justice Clarence Thomas and Justice Neil Gorsuch noted their disagreement but did not write to explain why. 

On Monday, Alito issued a 14-page statement in which he called the court’s decision ‘seriously wrong.’ He said the issue Murphy raised was an important one, but he faulted Murphy for an ‘inexcusable delay’ in raising it.

‘If the tactics of Murphy’s attorneys in this case are not inexcusably dilatory, it is hard to know what the concept means,’ Alito wrote. 

He added that the justices are asked to get involved at the last minute in ‘virtually every execution’ and that in the ‘great majority of cases, no good reason for the late filing is apparent.’ He said that by tolerating ‘such tactics, the Court invites abuse.’

In response, Justice Brett Kavanaugh, who previously voted to halt Murphy’s execution and said Murphy had not delayed, issued another statement. 

Despite ‘greatly’ respecting Alito’s position, he disagreed. He pointed out that after the court’s decision, Texas changed its policy so that no religious ministers are allowed in the execution room, only an adjacent viewing chamber. Kavanaugh called that a ‘prompt resolution.’

Following the court’s decision to stay Murphy’s execution, the state of Texas enacted a new policy to ban all spiritual leaders from the death chamber. Murphy’s legal team has said that course of action is unconstitutional infringes on the First Amendment right to freedom of religion.

In the Alabama case involving Ray’s execution, however, Kavanaugh voted to deny the stay sought by the  Muslim death row inmate.

Ray, who was executed on February 7, had a sought a stay over being denied an Islamic spiritual leader’s presence with him in the death chamber, but his legal team did not argue he was being discriminated against on the basis of unequal religious treatment under the First Amendment.

‘The bottom line is that Ray did not raise an equal-treatment claim. Murphy did,’ Kavanaugh wrote.

‘Unlike Ray, Murphy made his request to the State of Texas a full month before his scheduled execution,’ Kavanaugh wrote. ‘This court’s stay in Murphy’s case was appropriate and the stay facilitated a prompt fix to the religious equality problem in Texas’ execution protocol.’

The Supreme Court allowed Ray’s execution to proceed in a 5-4 decision. Justices cited the fact that Ray did not raise the challenge until January 28 as a reason for the decision. 

Ray was sentenced to death for the 1995 rape and murder of a 15-year-old girl. Tiffany Harville disappeared from her Selma home on July 15, 1995, and her decomposing body was found one month later in a cotton field. 

Alito was joined by Justices Clarence Thomas and Neil Gorsuch in voting against stays in both cases, arguing Murphy did not file in a more timely manner than Ray. 

‘By the time [Murphy’s legal team] got around to filing in federal court, it was March 26, two days before the scheduled execution date. And by the time they filed in this court, the scheduled execution time and the time when the death warrant would expire were only hours away.’

Alito noted that the merits of the case could very well warrant the highest court’s consideration.

‘The claims raised by Murphy and Ray are important and may ultimately be held to have merit,’ Alito wrote. 

‘Prisoners should bring such claims well before their scheduled executions so that the courts can adjudicate them in the way that the claims require and deserve and so that states are afforded sufficient time to make any necessary modifications to their execution protocols.’

Kavanaugh noted in his opinion published on Monday, ‘I fully agree with Justice Alito that counsel for inmates facing execution would be well advised to raise any potentially meritorious claims in a timely manner, as this Court has repeatedly emphasized.’ 

The high court almost never revisits opinions after the fact, though Monday was the second time this spring that the justices returned to arguments in an already-decided death penalty case.  

The justices frequently get asked to step in to halt executions at the last minute, and the spats aired on Monday involve cases the court ruled on in March and April.  

In a more recent case that was also addressed on Monday, Alabama asked the Supreme Court to step in and allow the execution of Christopher Lee Price, whose execution had been halted by a lower court after he raised a challenge to the state’s lethal injection procedure. 

The Supreme Court voted 5-4 along liberal-conservative lines to allow his execution.

In that case, Justice Stephen Breyer wrote on behalf of himself and his three liberal colleagues that the conservative majority’s decision to let the execution go forward ‘calls into question the basic principles of fairness that should underlie our criminal justice system’ and was evidence that ‘death sentences in the United States can be carried out in an arbitrary way.’

On Monday, Justice Clarence Thomas wrote a 14-page response of his own to ‘set the record straight.’ Thomas said there was ‘nothing of substance’ to Breyer’s claims, and that by his analysis an ‘accurate recounting’ of the circumstances surrounding the case show it was ‘set to proceed in a procedurally unremarkable and constitutional acceptable manner.’

The justices’ original decision in the case came after Price’s death warrant expired, so a new execution date had to be set. Price, who was convicted of murder in the 1991 stabbing death of pastor Bill Lynn, is now set to be executed May 30.


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