Authors

Claire R. Jenkins

What We Pretend To Be: Codifying a Right to a Religious Advisor in the Execution Chamber

Abstract

Over the last fifty years, the Supreme Court has moved the pendulum both toward religious accommodation and away from it. After a decade of oscillating Court decisions, multiple attempts at corrective action by Congress, and widespread social activism, the Religious Land Use and Institutionalized Person’s Act, or RLUIPA, was passed in 2000. RLUIPA was designed to fortify the rights of incarcerated persons and provide clarification to the Religious Freedom Restoration Act. As of 2024, the Supreme Court has granted certiorari in only a few RLUIPA cases—and has decided even less about the application of the law to death row inmates. The swinging pendulum of accommodation rights has been detrimental to the religious rights of people on death row who seek final spiritual comfort during their execution and death. In 2022, the Supreme Court addressed the issue most notably in Ramirez v. Collier, although the decision was surrounded by a litany of other cases, many of which were on the “shadow docket.” These decisions precipitated a variety of ill effects which left lower courts confused. State legislatures were also pulled into the ambit of chaos—they were left to their own devices to strike a proper balance between an inmate’s rights under RLUIPA and their interest in maintaining prison safety during executions. Since then, people throughout the United States are left to wonder whether the American culture of spirituality and religious pluralism extends to the isolation of the execution chamber. Most importantly, people on death row seeking spiritual guidance and comfort during their execution are left at the secular mercy of prison administrators rather than the sacred and holy principles and deities that are central to their faith. In this Note, I argue that the exclusion of spiritual advisors from the execution chamber is wholly inconsistent with the First Amendment value of religious freedom, and that any proffered state interests are not compelling enough to circumvent this right or have already been satisfied through alternative mechanisms. Finally, I will argue RLUIPA should be amended to explicitly apply to death row inmates, thus providing a specific protection against government interference with final religious advisements.

Repository Citation

Claire R. Jenkins, What We Pretend To Be: Codifying a Right to a Religious Advisor in the Execution Chamber, 30 Wm. & Mary J. Race, Gender, & Soc. Just. 515 (2024), https://scholarship.law.wm.edu/wmjowl/vol30/iss3/5