Tonight the Supreme Court put a temporary hold on the execution of Texas death-row inmate Ruben Gutierrez, who had been scheduled to die at 7 p.m. EDT. In a short unsigned order, the justices granted a request by Gutierrez to stay his execution while it considers his petition to review his case on the merits.
Gutierrez has spent more than 20 years on death row for the murder of 85-year-old Escolastica Harrison. Gutierrez and an accomplice robbed Harrison of cash, beat her and stabbed her repeatedly with a screwdriver.
Until March of last year, Texas allowed Christian and Muslim inmates to have a spiritual advisor with them in the execution chamber. But on March 29, 2019, the Supreme Court put the execution of a Buddhist prisoner, Patrick Murphy, on hold to give him time to file a petition for review – unless, the court said, Texas allowed either Murphy’s spiritual advisor or another Buddhist priest to attend.
In a separate opinion agreeing with the court’s ruling in Murphy’s case, Justice Brett Kavanaugh acknowledged that states may have “a strong interest in tightly controlling access to an execution room in order to ensure that the execution occurs without any complications, distractions, or disruptions.” But a possible solution to that concern, Kavanaugh seemed to suggest, would be for the state to exclude all spiritual advisors from the execution chamber. What the state cannot do, he concluded, “is to allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room.”
A few days later, Texas adopted a new policy that barred all chaplains and spiritual advisors from the execution chamber. That led to this lawsuit by Gutierrez, who is Catholic and who argued that the policy violates the Constitution and the Religious Land Use and Institutionalized Persons Act, a federal law that protects the religious rights of inmates. A federal district court in Texas agreed with him and put his execution on hold, but the U.S. Court of Appeals for the 5th Circuit lifted the stay last Friday, clearing the way for the execution to proceed tonight unless the Supreme Court intervened.
Shortly before 6 p.m. EDT, the Supreme Court put the execution on hold while it considers Gutierrez’s petition for review. If the petition is denied, the court explained, then the stay will be lifted automatically. And in an unusual twist, the justices instructed the district court to “promptly determine, based on whatever evidence the parties provide, whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.” The instruction suggests that at least some justices regard as central to the case the question whether Texas’ policy of excluding spiritual advisers from the execution chamber stems from genuine security concerns or instead was adopted, as Gutierrez has argued, to avoid charges that the state had discriminated against Murphy, the Buddhist inmate.