Death in Texas

Texas once again demonstrates that it can show the rest of the country the way and is now doing so at considerable expense to itself, by arguing a death penalty case in the United States Supreme Court.

Prospective decedents need not hold their breaths waiting for a result. The only thing more interesting than the result will be the reasons that accompany it.

The current case is not the first time Texas has taken steps to address death penalty practices that have caught national attention. In 2011 it addressed the question of the death penalty prospect's cuisine.

It has long been a tradition in many states that in order to make the hours immediately preceding the execution of the death penalty more pleasant for its beneficiary, the beneficiary may select the last meal he or she will ever eat. Until 2011, the beneficiary of the death penalty in Texas could select whatever he or she wanted for a last meal. Since it was taking place in Texas, cost was no object. That changed in 2011, however, because of the egregious behavior of Lawrence Russell Brewer.

On January 24, 1992, the day on which Lawrence was to be executed, Mr. Brewer could, according to Texas tradition, order whatever he wanted for a last meal. He ordered steak, fried okra, a triple bacon cheeseburger, three fajitas, an omelet, pizza, half a loaf of bread, Blue Bell ice cream, peanut butter fudge and three root beers. As if such elaborate selections were not enough to offend those who think a last meal choice is inappropriate to offer those whose conduct got them to the threshold of the execution chamber, Mr. Brewer added insult to injury. He went to the execution chamber without having eaten one bite of the ordered meal. (It should be noted that the failure to eat the ordered meal was not the reason he was sent to the execution chamber as some recalling a mother's infliction of punishment for the child who did not eat his/her dinner might have mistakenly thought.)

A state senator was so outraged by news of Mr. Brewer's menu selections and refusal to eat that he sent a letter to the Texas Department of Criminal Justice demanding that the practice of offering the condemned a meal choice stop. That, as we now know, was not the end of Texas's encounter with practices associated with the death penalty.

On November 8, 2021 Texas was in the U.S. Supreme Court arguing in defense of not permitting a person about to enter the death chamber to be accompanied by a spiritual advisor who could pray with the prospective corpse and lay hands on him/her. Texas was in front of the Court because of a 2019 Court ruling that said Texas could not execute a man on death row unless his Buddhist adviser or a Buddhist adviser of the state's choosing was in the execution chamber. As a result of that blocked execution, Texas imposed a new rule that only prison security staff can be in the execution chamber with the victim. It was that rule that was being questioned by Mr. Ramirez's lawyer in the oral argument in November 2021.

The Court was, as might be expected, very sensitive to the question posed and its possible ramifications as demonstrated by its questions, all of which seemed to overlook the fact that the execution chamber is quite small and entering it is subject to strict controls. Justice Kavanaugh wondered what would happen if a prisoner wanted bread and wine in the execution chamber, thinking the condemned may make the request looking for a last drink of wine rather than partaking of the body and blood of the condemned's Jesus. The Justice was also unmoved by Mr. Ramirez's lawyer's observation that Texas had allowed spiritual advisors at 572 executions engage in touching and audible prayer for a period of 40 years through 2019. Sensitive to niceties, he said that statistic did not impress him at all because the chaplains at those executions were state employees and not security risks. He further observed that an execution is a "very fraught situation with a lot of potential for issues." That, some might think, is a problem for the person about to be executed rather than for the executioner.

Justice Alito, a stickler for detail, was afraid judges would have to go through the entire human anatomy to determine where touching was permitted, a concern perhaps more pronounced if the prospective decedent was a woman rather than a man. Anticipating possible problems he asked: "What's going to happen when the next prisoner says that I have a religious belief that he should touch my knee? He should hold my hand? He should put his hand over my heart? He should be able to put his hand on my head?"

The only thing more bizarre than Texas's belief that a condemned person should not be permitted to have a non-prison religious advisor present in the death chamber were the perils perceived to exist by the Justices who will finally decide the limits that can be imposed on that practice. Prospective decedents need not hold their breaths waiting for a result. The only thing more interesting than the result will be the reasons that accompany it.

Christopher Brauchli can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at https://humanraceandothersports.com