A Texas death row inmate’s fight for access to his Buddhist adviser continues hours before his scheduled execution

An appeals court has upheld an order to delay the execution of Texas death row inmate Patrick Henry Murphy, who was scheduled to die by lethal injection Wednesday. The execution is on hold for the second time in nearly eight months because of an ongoing court battle over his religious liberty rights.

Murphy claims the state gives inmates who are Christian or Muslim greater access to spiritual advisers. Murphy has been a Buddhist for more than a decade.

The federal appeals court’s Tuesday decision upholds a November 7 order granting a stay of execution and it puts Murphy’s scheduled execution on hold unless the state appeals the decision.

If it does, the case may land in the US Supreme Court for the second time.

The court said that Murphy’s argument has “a strong likelihood of success on the merits of his claim that the (Texas Department of Criminal Justice) violates his rights by allowing inmates who share the same faith as (department)-employed clergy greater access to a spiritual (adviser) in the death house.”

All clergy employed by the state’s criminal justice department are Christian or Muslim, court documents say.

In March, the Supreme Court halted Murphy’s first scheduled execution hours before it was to take place.

In Murphy’s initial lawsuit, filed two days before the March stay, he had argued that the state refused to allow his Buddhist spiritual adviser to accompany him in the death chamber. Days later the state’s department of criminal justice changed its execution policy to bar all chaplains, ministers and advisers from the chamber.

The new policy only allows prison employees inside.

Murphy amended his complaint in April to focus on the interaction inmates are allowed to have with a spiritual adviser before they enter the execution chamber. He argued the amended policy “still favors some religions over others” because the department’s chaplains have more access to those facing an execution than spiritual advisers who don’t work for the department and practice a different religion.

Last week, US District Court Judge George C. Hanks Jr. issued a stay in the case.

Murphy’s case has pitted his claims of religious liberty against prison officials who have said his requests are meritless and a last-ditch effort to avoid execution.

‘Disparate treatment of religions continues to exist’

Murphy was convicted and sentenced to death in 2003 for killing police officer Aubrey Hawkins in 2000.

For more than 10 years, he has been a Buddhist, practicing the faith with the help of the Rev. Hui-Yong Shih.

Under the prison protocol, inmates have access to their spiritual advisers during business hours in the 2½ days leading up to the execution. But an inmate may only meet advisers who are not employed by the department in the holding area known as the “death house” between 3 p.m. and 4 p.m. on the day of the execution, a November 7 court order says.

Executions usually happen at least two hours later. An inmate can make calls to his adviser and others until 5 pm. But after that, only department personnel can interact with an inmate, the order says.

The department’s policy doesn’t limit the number of visits from the department-employed clergy “who appear to have access to an inmate until the minute he enters the execution chamber,” the order says.

Murphy argues “disparate treatment of different religions continues to exist in the holding area where a condemned inmate is held in the hours before he is executed.”

The department doesn’t employee a Buddhist chaplain, the order says.

Murphy argues “(b)eing able to chant with his spiritual (advisers) until the moment he enters the execution chamber would greatly assist him in maintaining th(e) focus” he needs to “be reborn in the Pure Land and work towards enlightenment” by “remain(ing) focused on Buddha while dying,” the order says.

But the state says Texas’ pre-execution protocol does not favor one religion over another.

The presence of department clergy “during the time when other spiritual (advisers) are excluded from in-person contact poses no constitutional concern,” the department argued.

The chaplains’ “role is to act as a consistent and calming presence for the condemned throughout the day, retrieving items requested by the condemned, offering and serving coffee and pastries to the condemned, facilitating phone calls, answering questions about the process, and serving as an active listener should the condemned want to talk,” the department argued.

The department has three Christian chaplains who are authorized to be present during an inmate’s final hours and work in the death house on the day of execution.

But in a deposition cited in the November 7 order, one of the chaplains says, “I could only pray according to my faith and my belief. If they have something that’s different — for instance, Buddhists, I don’t know their chants. I don’t know what they say, so I couldn’t offer them any prayers. I take that back. I could offer them prayers, but it wouldn’t be the way they wanted it.”

Another said they wouldn’t “feel comfortable” chanting with a Buddhist inmate, the order said.

“If Murphy were Christian, he would have the benefit of faith-specific spiritual support until he entered the execution chamber; as a Buddhist he is denied that benefit,” Judge Hanks wrote in the order.

Court has addressed religious liberties in executions this year

Twice this year, the Supreme Court has been asked to stay an execution because a prison policy allows Christian or Muslim chaplains who are prison employees to be present, but not advisers of other religions.

In a similar case, the Supreme Court split 5-4 and allowed the execution of Domineque Ray to go forward in February despite Ray’s argument that his religious freedom rights were violated when the prison barred his imam from the execution.

The Alabama prison employed only a Christian chaplain. The conservatives on the court said they acted because Ray had waited too long to seek review. But Justice Elena Kagan wrote a scathing dissent, joined by the three other liberal justices, calling the majority’s move “profoundly wrong.”

“Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death,” Kagan wrote, saying that the treatment “goes against the Establishment Clause’s core principle of denominational neutrality.”