By Amy Howe
November 16, 2022
at 3:48 p.m.
The Supreme Court has denied a request by Texas inmate Stephen Barbee to postpone his execution, scheduled for Wednesday night, after a judge ruled the state failed to adequately protect the religious rights of inmates in the execution chamber.
Texas agreed to allow Barbee’s minister to touch him and pray aloud during the lethal injection. But a federal district judge stayed the execution nonetheless, ruling that the state could only proceed if it announced a “clear policy” to protect the religious rights of inmates in their final moments. An appeals court lifted the district judge’s stay and, in an unsigned writ order in the absence of public dissent, the judges refused to restore it.
The denial of Barbee’s request was the second time Wednesday that the court has authorized an execution. Earlier in the day, the judges rejected final appeals by Arizona inmate Murray Hooper.
Barbee, 55, was convicted and sentenced to death for killing his former girlfriend, Lisa Underwood, who was pregnant, and her seven-year-old son, Jayden. Barbee filed a federal civil rights lawsuit in 2021, seeking to have his spiritual advisor in the execution chamber with him to pray aloud and lay hands on him.
The issue of spiritual advisors during executions has been familiar to the Supreme Court in recent years. In March, in Ramirez v. Collier, judges ruled another Texas inmate could ask his pastor to touch him and pray aloud during his execution. The judges likely hoped that their ruling in the case, which urged states to adopt clear rules for the future and instructed courts to allow executions to continue with religious accommodations if necessary, might have ended disputes over spiritual advisors.
Shortly after the decision to Ramirez, the Texas Department of Criminal Justice said it would not change its execution protocol. Instead, the agency said it would consider requests for spiritual advisers to touch an inmate or pray aloud on a case-by-case basis. A spokesperson for the agency then assured The Associated Press that the state would generally agree to such requests “unless there was just something ridiculously outrageous”.
In Barbee’s case, prison officials agreed to allow her spiritual advisor, a Salvation Army minister, to pray audibly, touch her leg or foot, and hold her hand. But U.S. District Judge Kenneth Hoyt, who had suspended the Barbee case until the Supreme Court issues its ruling in Ramireznevertheless suspended Barbee’s execution until the state adopts a formal policy for spiritual advisors.
The United States Court of Appeals for the 5th Circuit lifted Hoyt’s order on November 11, explaining that it was too broad because it applied not only to Barbee but also to other inmates. That prompted Barbee to appear before the Supreme Court on Tuesday, asking judges to block his execution. He argued that the Court of Appeal had “ignored the clear direction of this Court in Ramirez this called for the very remedy of injunction orders”: the adoption of clear rules in advance to avoid last-minute disputes.
The state countered that even if the court of Ramirez had “recommended” that prisons write new policies for religious exercise in the execution chamber, all that was needed was an ordinance that accommodated the inmate’s religious exercise — precisely, the state said, what he did in Barbee’s case.
On Tuesday, Hoyt stepped in and effectively stayed Barbee’s execution for the second time. Hoyt reiterated that the state must issue a clear policy on religious rights in the execution chamber — but this time only for Barbee.
The state returned to the 5th Circuit, which again lifted Hoyt’s order. Hoyt, explained the court in a brief opinion given on Wednesday afternoon“is not authorized to order” the State “to adopt a written policy to govern executions in general”.
This article has been originally published at Howe on the Court.