at 3:48 p.m
The Supreme Court denied a request by Texas inmate Stephen Barbee to postpone his execution scheduled for Wednesday night after a judge ruled that the state was not adequately protecting 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. A federal district judge nevertheless stayed the execution, ruling that the state could only proceed if it announced a “clear policy” to protect inmates’ religious rights in their last moments. An appeals court overturned the district judge’s stay, and in a brief, unsigned order without public opposition, the judges declined to reinstate.
The denial of Barbee’s request on Wednesday was the second time the court had authorized an execution. Earlier in the day, judges rejected the final appeals of Arizona inmate Murray Hooper.
Barbee, 55, was found guilty and sentenced to death for killing his former girlfriend, Lisa Underwood, who was pregnant, and their seven-year-old son, Jayden. Barbee filed a federal civil rights lawsuit in 2021 and attempted to have his spiritual advisor with him in the execution chamber to pray out loud and lay hands on him.
The issue of chaplains at executions has been familiar to the Supreme Court in recent years. In March, in Ramirez vs. Collier, the judges ruled that another Texas inmate could have his pastor touched and prayed aloud while he was executed. The judges were likely hoping that their ruling in that case, which urged states to enact clear rules going forward and directed courts to continue executions with religious adjustments if necessary, might have ended the dispute over clergymen.
Shortly after the decision Ramirez, the Texas Department of Criminal Justice said it would not change its execution record. Instead, the agency said it will review requests for spiritual advisers to touch an inmate or pray out loud on a case-by-case basis. A spokesman for the agency later assured the Associated Press that the state would generally honor such requests “unless there’s just something ridiculously outrageous.”
In Barbee’s case, prison officials agreed to allow his spiritual advisor, a Salvation Army minister, to pray audibly, touch his leg or foot, and hold his hand. But U.S. District Judge Kenneth Hoyt stayed Barbee’s case pending the Supreme Court’s ruling Ramireznevertheless stayed Barbee’s execution until the state passed a formal policy on spiritual advisors.
The U.S. Circuit Court of Appeals for the 5th Circuit reversed Hoyt’s order on November 11, saying it was too broad because it applied not only to Barbee but to other inmates as well. This prompted Barbee to come to the Supreme Court on Tuesday and ask the judges to prevent his execution. He argued that the Court of Appeals “ignored the clear direction of that court Ramirez which required the very remedy of restraining orders”: the adoption of clear rules in advance to prevent last-minute litigation.
The state countered this in court Ramirez had “recommended” prisons to draft new guidelines for religious practice in the execution chamber, all that is required is an order that accommodates the prisoner’s religious practice — exactly what the state said it did in the Barbee case, it said .
On Tuesday, Hoyt intervened, effectively putting Barbee’s execution on hold for a second time. Hoyt reiterated that the state must publish a clear policy on religious rights in the execution chamber – but this time only for Barbee.
The state returned to the 5th Circuit, which again overturned Hoyt’s order. Hoyt, the court said in a brief statement Wednesday afternoon, “has no authority to order the state to ‘enact a written policy governing executions in general’.”
This article was originally published by Howe on the Court.