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MARY REICHARD, HOST: July 19th, 2004. Just a typical warm summer evening in Corpus Christi, Texas…until 9-1-1 dispatchers got word of a disturbance at a local hamburger joint.
911 OPERATOR: 911 location of your emergency?
THOMAS GREEN: Uh 2018 South Staples…the Whataburger...
OPERATOR: Ok what’s going on?
“What’s going on” in that Whataburger at 20-18 South Staples Street is serious. But it’s nothing compared to what went on minutes before outside a convenience store nearby.
OPERATOR: 911 emergency...
CALLER: Uh yes somebody just either hit or jumped somebody here that’s bleeding; I don’t know if it’s a guy that was working here...
OPERATOR: Ok where are 1902...
CALLER: 1902 by-one, yes, hurry please!
OPERATOR: Ok…oh great...
The first 9-1-1 calls are about women threatened at knifepoint at the Whataburger fast-food drive through.
CALLER: …a girl on the passenger side distracted me, asked for a cell phone, and then a guy came to the driver’s side and held a knife to my throat…
CALLER: …the guy pulls up from the other side and grabbed me by the neck and he pulled a knife on me and said give me your money. He said give me your purse give me all of your money...
OPERATOR: What did he look like?
But what they don’t know authorities don’t know yet is that the man with the knife had already struck across town. His victim lies in a pool of blood.
Pablo Castro was taking the trash out at the end of his shift. He encountered John Henry Ramirez, who stabs Castro a total of 29 times.
CALLER: …the people left, there’s two people, a red and a white van following each other…
Ramirez gets away and goes on the lam for four years. Castro does not get away..
NEWSCAST: The case of John Henry Ramirez has been making headlines since 2004. It was in July of that year, when Ramirez killed Pablo Castro during a convenience store robbery…
That Ramirez killed Pablo Castro is not in question. He confessed. Eyewitnesses testified against him. DNA evidence confirmed it. It was an open-and-shut capital prosecution.
Ramirez will wait out his final sentence on death row at the Polunsky Unit. Inmate number 999544 … cold-blooded killer John Henry Ramirez encounters Christ and has a jailhouse conversion.
Ramirez joins Second Baptist Church of Corpus Christi … comes under the teaching of Pastor Dana Moore … and shepherding by the church’s Death Row visitation team. He studies scripture and grows in his Biblical knowledge. He leads several Christian ministries from behind bars … one of those the prison-run Christian radio … 106.5 FM The Tank.
PRISON DJ: You're tuned in to the station that will remind you continuously that Jesus is King. Amen…
Ramirez has been on The Tank … on the air … for about two years.
RAMIREZ ON RADIO: Now when I have to take that walk I want to be able to say, you know what?
He’s been in The Tank, that is Death Row, for 13 years …
RAMIREZ ON RADIO: And I'm trying to encourage people around me to do that. And the Tank has helped me…
His execution dates set three times and then delayed for one reason or another. Including a delay due to the pandemic. But then came the delay that made this story a national controversy: Ramirez asked that at the time of his execution Pastor Moore be with him. In the death chamber. Praying aloud as prison officials start the flow of deadly chemicals. Physically laying a hand upon Ramirez as he slips into eternity.
The state used to allow spiritual support in the death chamber but banned it in 2019. Back in February, I traveled to Livingston, Texas. About an hour and a half northeast of Houston. To the Allan B. Polunsky Unit. A supermax prison. The location of men’s death row in Texas.
My audio assistant handed her digital recorder to prison workers who then took it to Ramirez. He’s playful with the prison guard. Joshing with her that he’s not giving it back.
FEMALE GUARD: [laughs] We ain’t havin’ one of them kind of days now…it’s already started off bad…
He signs a paper, takes a seat, and clips the lavalier microphone to his white prison uniform.
MALE GUARD: Right about where your cross is right there, make sure your chain doesn’t hit up against it
RAMIREZ: Can you hear me good?
At this point a slab of soundproof glass separates me from Ramirez. We communicate through handset phones. If you’re old enough to remember pay telephones, that’s what these are like.
GUARD: You know the drill, they got an hour to talk to you, I’ll keep time over here on my phone. Got any questions?
We make some awkward, ice-breaking conversation. He’s obviously familiar with audio equipment because of his experience on The Tank, so we get right to it. He tells me about the ministries he’s involved in. Still, he also says he’s deeply depressed and very much wants out of here.
I ask what he remembers enjoying when he was a kid. Eventually, he starts to cry.
RAMIREZ: I got like five different ministries going on in here that I’ve been doing for years
MARY: So your life has meaning...
RAMIREZ: Yeah it does it does, but you know it just, one of my biggest problems is I’m like severely depressed, you know?
I finally do get around to asking what his goal is in fighting the state over having his pastor with him in the death chamber.
RAMIREZ: You know, the, I guess really, the only two things I can ask for is that when that moment comes, that I'm, that I'm at peace. I don't want to be uncomfortable. I don't want to be scared. I don't want to be fearful of what's going to happen in the afterlife, which is all things that of course are going to cross my mind.
Discomfort. Fear. Things Ramirez doesn’t want in the moment of his death. Which raises a big question: Why should a convicted murderer get to design the scene of his own death when his victim could not?
I Clarence Thomas...I Sonya Sotomayor...I Stephen Breyer...I Amy Coney Barrett do solemnly swear. I Brett M. Kavanaugh do solemnly swear...do solemnly swear...do solemnly swear...that I will administer justice, without respect to persons, that I will support and defend the constitution of the United States, so help me God…[APPLAUSE]
MARY REICHARD: Welcome to Legal Docket, I’m Mary Reichard.
JENNY ROUGH: And I’m Jenny Rough. This podcast is from the team at WORLD Radio.
MARSHALL: The honorable Chief Justice and the associate justices of the Supreme Court of the United States. Oyez! Oyez! Oyez!
Come with us inside the world of the Supreme Court as we talk to the people involved and think deeply about the most recent term’s disputes and decisions…and how they make a difference to your life.
MARSHALL: All persons having business before the honorable Supreme Court...
Today, we bring you the story of the death penalty and the rights of an inmate in the execution chamber.
MARSHALL: God save the United States and this honorable court.
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JR: A journalist interviewing an inmate at the only death row facility for men in Livingston, Texas, has a tight 60 minutes to do so.
MR: Before arrival, I had some preliminaries to do: Email copies of my driver’s license. Provide a list of equipment. Agree to leave in the car things like laptops, money, credit cards or correspondence.
JR: Predictable rules, regulations, protocols. An officer with the Texas Department of Criminal Justice set the interview with Ramirez for February 23. He emailed more rules: arrive at 9 a.m. sharp, no sooner and no later! Don’t wear white. Meet him in the parking lot to be escorted through inspection.
MR: Well I managed all of that, passing inspection. Then I walked to another building 100 yards away to the interview room. An oil portrait hung in the hallway by an artist who signed his name: “Slaughter.”
Once in the room, I count twenty phone booths along one wall for family, friends, or the media to talk to the inmates through plexiglass dividers.
On the opposite wall, eight booths for lawyers to talk to clients.
On another wall, a broken clock. The kind that’s right twice a day.
Ramirez arrives handcuffed and dressed in all white: shirt, pants, vest, tennis shoes. He sits in a white metal cage with two solid white walls. Ramirez can hold both arms out and touch the sides.
We each pick up the old-style black phones hung on either side of the plexiglass. I’m newly aware I can leave this place anytime I want.
MARY: Good morning, Mr. Ramirez. I’m Mary Reichard
RAMIREZ: How you doing, good morning. How are you doing?
MARY: How are you?
RAMIREZ: Pretty good. How about yourself?
MARY: I mean I really want to know, how are you?
RAMIREZ: Oh, you know. You know how it is.
MARY: I don’t. I want you to tell me.
RAMIREZ: Oh, my goodness. Hoo-wee. Just hanging in there you know. You know, it's just, just part of the life being in here.
He’s in his late 30s, green eyes, around 5’8” and probably around 200 pounds. The word “DEATH” is tattooed on his right arm.
I’m surprised by his cheerful demeanor and consistent eye contact.
RAMIREZ: I'm an open book. I don’t have no secrets, you know.
I start with soft ball questions, mostly to settle myself, to be honest. Death Row is an unsettling place to be. I ask about his childhood.
RAMIREZ: Well now we always lived in apartments….so apartments always have like a community vibe to it because there's always a bunch of people around you. I mean, so it was always just run around and play with other kids and whatnot.
JR: When he says apartments, he means the projects. He had a younger brother and sister for whom he was more responsible than he liked. Feeding, changing diapers, entertaining them.
His parents didn’t get along and broke up when he was two. He says his mother beat both him and his alcoholic father. He never again lived with his father.
Ramirez claims his mom once split his head open in anger when he accidentally broke the vacuum cleaner by vacuuming up a penny. Officials found the split in his head while checking for lice at school. Eventually, Child Protective Services removed Ramirez from his home. He was still in elementary school. Does he think his troubled childhood led to his situation now?
RAMIREZ: A lot of people will use this bad childhood thing. You know, it always comes back to that, oh, you had a terrible childhood. And I always like to curtail that. Eh, then, because it comes across, like the pity party thing, you know what I mean, it comes across so insincere, and so, like, an excuse, you know, and it's like, there's loads of people that grow up like I did, or worse, and they don't end up being murderers…Yeah, I had a bad childhood but I still made my choices….
MR: Still, he wasn’t without a faith influence. On Sundays a van took the kids to church where they’d hear the gospel and eat a meal.
RAMIREZ: I mean you pick up on studying even though, even though like I said, I wasn't there really to do the church thing. I was just there. I'm just a little kid. I was like, seven, eight years old.
JR: Later, during his teen years, his grandmother did Bible studies with him and made sure he went to church with her.
MR: He told me he’s almost always been in some sort of trouble. He joined the Marines but fought with his sergeant. The Marines court-martialed him and sent him to the brig.
He escaped through a window but was caught and received a medical discharge. I asked Ramirez: why did he act like that?
RAMIREZ: Before, I was so selfish, it was all about me, it's all about my fun. It was all about what I thought was, you know, was owed to me or what I, you know, I mean, everything that we do, we feel entitled, It gave me something like ? when we go and steal from someone, you steal someone else's stuff, because you feel you deserve that. It just all comes down to selfishness, you know?
JR: Which leads to that bloody night in July 2004 when Ramirez went on a drug-infused rampage along with two female companions. They drove to the convenience store in Corpus Christi where Pablo Castro was taking out the trash near the end of his shift.
RAMIREZ: …one of them used the bathroom. One of them stayed in the truck. And I went in. I bought some cigarettes and some I think it was like a strawberry milk or something. And like some little snacks, right? And we went out in the parking lot and the other one was smacking him around or whatever. And I went and separated them. When I separated them, Pablo hit me. When he hit me, I started fighting with him.
JR: Ramirez had a knife. His martial arts training in the Marine Corps combined with his drug-altered mental state…
RAMIREZ: Yeah, I mean, it was, it was a fight. I went too far. I saw that I had slit his throat like that, it just, it just shocked me. I just, I just completely sobered up. And I just snapped out of it. I mean, even the witnesses will tell you, because we're fighting and then as soon as he fell down and I looked at him, they said I just stood there and stared at him and I just walked away. Just walked away and got in the truck like, man, I knew, I knew that I went too far.
JR: Soon after, the trio threatened two women at knife point at a Whattaburger drive through line. You heard the 9-11 calls earlier. But it was the murder of Pablo Castro that landed Ramirez on Death Row, where he’s been for 13 years, as of 2022.
MR: He’s evaded execution three times now. The latest date scheduled for September 8th, 2021… postponed, because Ramirez wants his pastor to be with him at the moment of death, to pray aloud, and lay hands on him. We’ll get into why that’s important later on.
The Supreme Court granted his request to stay the execution and heard arguments just two months later in November. You’ll hear some of that in a moment as well. I asked Ramirez the question we started out with: Why should he get to design his own death scene? His victim didn’t get to.
RAMIREZ: Well, when you, when it comes down to the bare bones? It's because of the laws, the religious rights, you know? I mean because we have laws and we have to abide by these laws as a society and community. Then if I have a right to that, then I should get it. You know, the law doesn't say if you didn't give your victim such and such amenities, then you should not have such and such amenities. If it did, then I'd have to abide by that.
JR: Society’s rules, religious rights. But is he sorry for what he’s done? Repentant?
RAMIREZ: I don't know why I did what I did. I'm sorry, I’ll never be able to change it, and never be able to take it back. I'm not fighting my conviction or my sentence. I'm not fighting my death sentence. All I'm asking for is you let me do my religious, my religious practices. So I'm not trying to stop the execution. But nobody points that out. Everyone just says, Oh, I think he's just doing this to prolong his life. No, how am I fighting my execution or my sentence at all? I'm not appealing, none of that.
JR: Remember that, about not appealing. We’ll come back around to it later. The lawyers duked it out for the U.S. Supreme Court in November, 2021. You can hear both sides laying out their best legal arguments. Lawyers for the prison system and for Ramirez. First up: the lawyer for Ramirez, Seth Kretzer:
SETH KRETZER: Across Texas's 572 executions spanning four decades, the State's policy was to allow a spiritual advisor to be present in the execution chamber to lay hands on a condemned inmate and to audibly pray. In 2019, that long-standing practice changed suddenly when the State chose to forbid any religious advisor from the execution chamber...
JR: Ramirez’s lawyer Kretzer drew bold arrows toward what Texas once permitted …and then didn’t. Inconsistency… is a bad look in the law. Certainty allows people to know what to expect, and to hold authorities accountable when they go too far and harm rights.
KRETZER: I think it has to be remembered that Mr. Ramirez, starting back when his execution was first scheduled, started to file Step 1, Step 2 grievances. Then the State changed their policy. The State then proceeded to list these restrictions in piecemeal fashion that came from a letter from the general counsel and so forth. If the State is so worried about these things coming up in the last minute, all they have to do is actually tell us what the rules are. In other words, there's not a single thing in the prison manual that anyone can see or in the form that Pastor Moore was told to sign that says what he could or could not do.
JR: For the other side, defending the prison system, state solicitor general Judd Stone:
JUDD STONE: Petitioner has twice received the extremely exceptional remedy of having his execution halted at the last minute. Each time he litigates around an execution date, he receives another lengthy reprieve. This Court should not countenance the delay of a fourth execution date.
MR: In other words, he’s saying justice delayed is justice denied. It’s helpful to understand some background here. It points to the Supreme Court itself as part of the confusion. The high court’s own inconsistent rulings as it pertains to requests from death row.
In 2019, the Supreme Court refused to allow a Muslim inmate in Alabama to have his spiritual advisor— present for his execution. But then soon after that, the justices blocked the execution of a Buddhist inmate who’d made a similar request.
JR: In that decision, Justice Brett Kavanaugh noted that states should either allow all religions in the death chamber, or none. So Texas went with none. No religious advisors in the death chamber.
But then two years later, the state flipped and permitted a spiritual advisor into the chamber. The state’s brief explains that condemned inmates kept suing over the matter and one inmate succeeded. So in 2021, Texas amended its protocol to allow an inmate’s chosen spiritual advisor to be inside the chamber.
MR: But Ramirez wanted more than mere presence of his pastor; he wanted touch and prayer. So that’s the background that led to all the confusion. Now back to oral argument. Justice Clarence Thomas expressed doubts about Ramirez’s true motivations.
JUSTICE CLARENCE THOMAS: If we think that Mr. Ramirez has changed his requests a number of times and has filed last minute complaints, and if we assume that’s some indication of gaming the system, what should we do with that with respect to assessing the sincerity of his beliefs?
KRETZER: By looking at the best evidence, which is in the record, which is a seriatim, one handwritten signed grievance after another repeatedly requesting the same thing...
MR: Seriatum, as the lawyer said, another Latin bit of legalese meaning one grievance filed after the other. Think “series.” Lawyer Kretzer argued a law known as RLUIPA favors his client. The Religious Land Use and Institutionalized Persons Act. RLUIPA says to balance the inmate’s religious accommodation request with the state’s concern for protocol. But at what point on the balance beam of competing interests is the fulcrum? Toward the inmate’s side, or the state’s?
JR: Justice Samuel Alito worried that leniency with inmates would encourage frivolous claims and waste resources in a system already overburdened. If we say yes to Ramirez, then the next inmate will want a spiritual adviser to touch his knee, another his hand, another his heart.
JUSTICE SAMUEL ALITO: Like virtually every application for a stay of execution, they come to us at the last minute, the day before, sometimes the day of, what you have said so far suggests to me that we can look forward to an unending stream of variations.
MR: No matter, Kretzer for Ramirez countered. His client has the right under the Constitution and RLUIPA to free religious exercise. In turn, Texas must meet the highest standard of legal review: Strict scrutiny, meaning a compelling reason to burden religious exercise, and using the least restrictive means to do so.
JR: But lawyer Stone for Texas reminded the court of a prison’s highest priority: security. Protocols and rules are paramount. You can’t just have outsiders who aren’t trained in security protocols coming into the execution chamber. Like…Pastor Moore, Ramirez’s pastor.
MR: Still, lawyer Stone for Texas countered with another potential problem: a microphone hangs above the inmate’s head for the staff to monitor sounds, in case of choking or unnecessary pain and suffering. If someone in the room is talking, the microphone would pick up that audio and obscure sounds from the inmate.
JR: Or, another scenario. Perhaps someone in the room might exploit that moment to make a political statement against the death penalty. Justice Stephen Breyer wanted Ramirez’s lawyer to tell him how often that’s happened.
KRETZER: As far as anyone has looked, Justice Breyer, for 100 years or longer, there’s not a single instance of any chaplain ever causing any such disturbance.
But Stone for Texas countered just because it hasn’t happened, doesn’t mean it won’t.
STONE: It just has a catastrophic potential of potential damage if it did.
JR: So there you have the highlights of oral argument.
CHIEF JUSTICE JOHN ROBERTS: Thank you, counsel. The case is submitted.
MR: So far, you’ve heard from Ramirez. You’ve heard the legal arguments. But there’s another side to all this. What about the victims? I sent interview requests to seven of Pablo Castro’s nine children on various social media platforms. Only one responded, but that was to decline an interview.
JR: But some of Castro’s children wrote to the justices to ask that they deny clemency to Ramirez. That is, no lenience as to his sentence to die. Here is an excerpt from one of Castro’s now-adult children in a request to the court last summer. His youngest son Pablo Castro, Jr. who was 11 when Ramirez murdered his father.
It’s edited, and read by a voice actor:
VOICE OVER: It’s not right he gets to live and talk to his family when that right was taken from my father. My father will never be able to call or write to me. He was not able to witness me graduate school, basic training, advanced individual training, or see his grandchildren…I have doubled in age already and nothing has been done...
MR: Back in January, my production assistant and I flew to Corpus Christi, Texas to interview Ramirez’s pastor. But before we met with him, we walked around Cole Park, overlooking Corpus Christi Bay. A cold, clear blue day. Fishing boats bobbed up and down in the choppy water. Waves lapped ashore and children played at a nearby playground.
Not too far from here is the Nueces County Victims Memorial Garden. A place born out of the unimaginable grief of a mother whose daughter was murdered. Fallon Wood knows that grief. I spoke with her a few weeks later:
FALLON WOOD: I created Nueces County victims Memorial Garden for every victim in our community for all the families. I couldn't believe that, you know, that the city didn't have anything for us.
JR: Wood’s daughter Brianna Colleen went missing in 2016. She looked for her daughter for 85 days until authorities found her body. During that time of searching for her daughter, she sought peace at the waterfront.
WOODS: None of our angels here will ever be forgotten, you know. And Pablo? He's, he has a plaque at our garden. So, yes, yes.
MR: Pablo Castro, remembered. Wood doesn’t think his killer should dictate the particulars of how his own death is carried out.
WOODS: You know, he didn't say, during the time to Pablo, you know, I'm about to stab you 29 times. Do you want to say anything before you die? Do you want to pray to God before you die? You know, or have, have some priest come touch your forehead before I kill you? Before I stab you 29 times? They have that right. And they know it. And I'm tired. I'm tired of the rights. What about victims’ rights?
MR: You can hear the deep trauma in her voice, common to family members who lose a loved one to violence.
WOODS: I tried, she was only 21 years old. I didn't even get a grandchild or marriage or nothing. I mean, I live every day, so you know, without her and I haven't, you know, I have all her stuff still. So I can't, I mean, it's hers. You know, I can't. I just can't….and I see things and I buy them for her, you know, like, “Oh, I know Brianna would like that.” And I would get it. I have so much… and I keep doing it and I don't think I'll ever stop that.
MR: So for victims, the trauma upends their lives. Everything, forever. Acknowledging that is part of the equation of justice, too.
JR: And now, back to Ramirez’s pastor, Dana Moore. He’s lead pastor at Second Baptist Church in Corpus Christi. He’s been a pastor for 38 years, married to his wife, Cathy, most of that time, and they have two grown sons. He earned his Master of Divinity from Southwestern Baptist Theological Seminary with a PhD in philosophy.
Second Baptist let Ramirez join the church by proxy four years ago. Pastor Moore’s been ministering to him ever since.
MR: Later on, Ramirez began to study Hebrew. He grew a beard and shaved his head, adopting the views of Messianic Judaism. But he remained a member of Second Baptist. The question burning in my mind?How does Pastor Moore know he’s not being manipulated?
DANA MOORE: I've seen John where he has kind of pushed God away at times and been frustrated and, and just, you know, not, I can't clinically say he was depressed, but you know, been depressed in a general way and stuff. And I don't think if he's playing me, he's going to be doing that. And so when I hear him studying scripture, he knows scripture, he knows Scripture very well, and the application of Scripture.
JR: Pastor Moore affirms that Christian practice, and Baptist practice in particular, emphasizes physical touch, like the laying on of hands that Ramirez is fighting for. Practice, as distinguished from beliefs.
MR: And the practice of prayer. Need that be out loud?
MOORE: So John can hear. Audible prayer is, you know, we talk about praying to God, but the audible prayer is also for the benefit of those who can hear it. And it's the same thing that we do in worship. We don't just do silent prayer in worship.
MR: Pastor Moore is a vocal opponent of the death penalty. And that’s the sort of person the prison worries may make a political statement at the crucial moment.
REICHARD: When that moment happens, are you sure that you can control yourself? Sure that you would be able to maintain composure, and just do your job, and not turn it into something else?
MOORE: Sure. And the reason would be twofold. Number one, that's not in my nature to do something like that. Although I can be passionate at times about my beliefs. And you know, if something goes wrong, like if something if John gets into distress, I want him relieved. I want the medical people to come over and take care of whatever distress he's in and I'm gonna want to get out of the way. You know, because this guy I love is in distress. So get him out of distress.
MR: What does he think ought to be done to address the prison’s concerns?
MOORE: This isn't hard. If you're worried about somebody? Vet them better, make it hard. Make it hard to be a spiritual advisor.
MR: And what of the victim’s family? Pablo Castro’s family, watching all this unfold from the next room?
MOORE: I care about that. I care about them too. And you know, one of the things that I will talk to John about you know, whenever, if his execution comes back and I'm in the chamber with him, you know, John, what are you gonna say to the family? What do you want me to say about them in the prayer? And thank you for knowing, you're one of the few reporters that knew his name. I've had a lot of reporters talk about the victim. And it's like, well, the victim has a name. His name is Pablo Castro.
JR: Texas Attorney General Judd Stone didn’t respond to an interview request to get the prison’s side of the story. But Kent Scheidegger filed a friend of the court brief in support of the prison system. He did agree to talk. He’s the legal director of the Criminal Justice Legal Foundation.
MR: His brief had a line that caught my eye about how sincere Ramirez’s religious beliefs are: “plaintiff says over and over in his brief that this belief is sincere. The lack of evidence to the contrary doesn't mean it is true, it means there's no way to challenge it."
SCHEIDEGGER: In most of these religious cases, all a person has to do is assert that he has a belief that is being somehow trampled upon. And the state really has no way to challenge that. Beliefs are entirely inside his own head. And there is often very little or next to nothing that can be said to challenge that even though it may not indeed be true.
MR: But what about the idea that when the state puts someone to death, a larger purpose is being served, such as deterrence. Meaning, the threat of punishment will steer people away from doing crime. Doesn’t allowing an inmate some say in the process assist in that larger purpose?
SCHEIDEGGER: I think this is about exploiting a religion claim, to postpone the execution altogether. And look how long he succeeded in doing just that….the entire process is delayed while we litigate this religion claim.
JR: Bottom line for Scheidegger?
SCHEIDEGGER: …the execution of a valid state judgment should not be delayed, except in extreme and exceptionally compelling circumstances. And this doesn't come close.
JR: So far, you’ve heard the story behind Ramirez’s plea, the state’s authority over the prison system, the never-ending longing for justice for murder victims, and the legal proceedings to carry out that justice. What’s missing is the nature of punishment and what the US Constitution says about it.
MR: For that, we call up a scholar in constitutional law, Robert Blecker.
ROBERT BLECKER: The right to define, detect, prosecute and punish is essentially the core right of a state. Criminal law is the states' sovereignty at its core.
MR: He’s describing federalism—state sovereignty within constitutional limits of the federal government.
BLECKER: Texas has a right to do it, as it sees fit, as long as it doesn't violate the First Amendment because unquestionably, if it does, then Texas doesn't have that right, because the First Amendment controls under the Supremacy Clause. This Constitution is the supreme law of the land, anything in the state to the contrary notwithstanding.
MR: He teaches classes in criminal law, constitutional history, and crime and punishment at New York Law School. Blecker also published a memoir based upon years he spent talking to death row inmates around the country. Blecker is interested in the meaning of the execution scene for society, for the victims, for the condemned.
BLECKER: We are putting to death a helpless human being at that moment…for something he's done in the past…Now, what do we hope to accomplish by it?...Well, it seems to me…all parties have an interest in the solemnity of the proceeding. I mean, this is his death scene. But not only that, this is a ritualistic killing that the state, the people of the state, in their name are doing.
MR: So that implies that the people must carry out an execution in a way that maximizes its significance:
BLECKER: The question is, for whose sake is this scene?...I mean, is this part of the state's punishment? If so, then classic purposes are: well, in the case of death, of course, incapacitation--that the condemned will no longer commit crimes in the future….The United States Supreme Court has held that incapacitation alone can never justify the death penalty. It has to be on the basis either of deterrence or retribution.
MR: So that raises the question of how to design the execution scene in a way that actually does deter potential criminals. Blecker said that argument had a lot more punch to it when executions were done in public. Deter crime by showing the public what happens when you do the crime.
MR: Along with considering the purpose of executions, I wanted to know the history of them, especially as they relate to prayer and touch. History is a legal tool of analysis, a way to assess importance and practice. So I called up lawyers behind the amicus briefs filed in the case who would talk to me, who filed in support of Ramirez.
First, Daniel Chen from the Becket Fund.
DANIEL CHEN: In England and also continuing then in her colonies, the practice of audible spiritual prayer and guidance in the final moments before death long proceeded and continued through the founding of our country.
JR: Those practices go way, way back, to 1544 in the Tyburn Gallows in England. An early prison chaplain called the Ordinary of Newgate would accompany the condemned to where he would stand just before execution, and pray with the inmate.
CHEN: Although the Ordinary of Newgate started as an Anglican cleric, by the 1700s Nonconformist, meaning Protestants who didn't belong to the Anglican Church, Catholics, Jews and others were accommodated with spiritual advisors of their own choosing as they were sent to Tyburn Gallows.
JR: Chen goes on to outline the history from 1649 when Parliament executed King Charles the First during the English Civil War. Parliament allowed the king to be ministered to on the scaffold by his own clergyman.
CHEN: So that was in England and that tradition of protecting audible clergy prayer at the time of execution across the Atlantic and continued on in North America.
MR: Where, in the 1600s, notable ministers like Cotton Mather led prayers for the condemned right up to execution. And then moving into the 1700s during the Revolutionary War, George Washington orders that condemned soldiers who deserted would still be attended to by the chaplains of their choice.
MR: And all the way into the last century, including the Nuremberg trials. As for physical touch by clergy? Chen acknowledges that the method of execution matters:
CHEN: If you're thinking of hanging, firing squad, electrocution or the gas chamber, it's really infeasible to have a clergy member by your side holding your hand or touching your shoulder as you're being put to death.
MR: s to the law and the Constitution, they place limits on government. Chen says Texas fails the strict scrutiny hurdles government must pass before infringing on a person’s fundamental right: one, a really good reason to do it, what’s called a compelling interest, and two, pursuing that compelling interest in the least restrictive way possible.
CHEN: Before 2019, Texas actually allowed precisely these types of religious practices.
JR: Another friend of the court brief in support of Ramirez came from First Liberty Institute. One of its lawyers, Hiram Sasser, says the question in this case shouldn’t be about the government’s interest.
HIRAM SASSER: The correct question is, why can the government not provide an exception to their general policy for this particular person, under these particular circumstances?
JR: Sasser is talking about that federal law with the odd acronym, RLUIPA, Religious Land Use and Institutionalized Persons Act. Among other things, it protects religious people who are institutionalized, such as prisoners.
MR: And back to history, the why a law came into being. For more on that, here’s the lawyer who argued Ramirez’s case at the Supreme Court, Seth Kretzer. He explains part of RLUIPA:
KRETZER: State prisons, if they take $10 million of federal money for the prison, the federal government requires them to, as part of the regulation, allow these various religious freedoms, okay, that be imposed on the prison. So in that extent, it's very much conditioned on the spending power. It's not that dissimilar from states that accept federal highway money, and they have to put speed limits.
JR: Prisons get money? Prisons must agree to do certain things. When inmates request religious accommodations, then what?
KRETZER: You have religious liberty, which everyone would support in the abstract as RLUIPA passed Congress, I think unanimously 21 years ago. And then you also have prison security rationales or needs in the prison, and most specifically in the execution chamber. And at this point, they've come into complete contact, conflict. So it's kind of like one unstoppable force meets an immovable object.
MR: Except, in the case of Ramirez, the unstoppable force and immovable object met their match at the U-S Supreme Court.
NEWSCAST: ...which said a death row inmate should be allowed to have his pastor to pray out loud and touch him during his execution. But that decision has not kept Ramirez from being executed. He is now set to be put to death, October 5th, anytime after 6pm.
JR: The justices decided 8-1 in favor of Ramirez, deciding under the RLUIPA federal statute alone. They never even got to analysis under the First Amendment!. So, Ramirez will have his pastor with him for prayer and touch as he’s executed.
MR: I contacted two experts to help analyze the opinion.
JOHN BURSH: My name is John Bursch, I'm the vice president of appellate advocacy at Alliance Defending Freedom…I have argued 12 cases in the US Supreme Court and worked on many more.
LAEL WEINBERGER: Hi. I'm Lael Weinberger and I am the Olin Cyril Smith fellow in law and a lecturer in law at Harvard Law School. And my research, it focuses on law and religion and church- state matters.
Weinberger summarizes the reasoning of the opinion:
WEINBERGER: Basically the majority said that RLUIPA requires an accommodation for Ramirez…And the majority applied that here and said that RLUIPA protects Ramirez and requires that the Texas prison system provide him an accommodation that he requested for his religious practice.
JR: Bursch elaborated on what RLUIPA requires of the government, in this case, the state prison:
BURSCH: The statute requires the government then to establish quite a high standard in order to be able to not give the prisoner what they're asking for. And the US Supreme Court held them to that high standard…And then the court also in its majority opinion, and in some of the concurring and dissenting opinions, even chided officials a little bit for not being able to work this out short of coming to the US Supreme Court.
JR: Weinberger took that further in analysis:
WEINBERGER: The justices realize that…this imposes a heavy burden on the courts. And yet, they are working with a statute that Congress passed, that is pretty specific, and very much talks, seems to speak to individualized situations…the court pretty much says to lower courts that will be adjudicating most of these, "You're stuck. You have to do it one by one."
JR: The opinion had one dissenter. Weinberger explains:
WEINBERGER: Justice Thomas objects there's no evidence that Mr. Ramirez has any particular beliefs, convictions, or commitments that make this relevant to him personally, and he doesn't explain why at one point in 2020 he said that there is no need for his pastor to actually physically touch him during the execution chamber and then a year and a half later to assert yes I want the laying on of hands.
JR: Plenty of quibbling over words in all that, but it made Justice Thomas quite skeptical. Still, the majority justices showed reluctance to have courts figuring out how sincere someone really is.
BURSCH: “I truly believe that Jesus Christ died and rose from the dead” is going to sound strange to a lot of people, but we don't want courts to second guess that. So the fact that they weighed in favor of his sincerity here is going to be a good thing for the long term arc of the law when it comes to religious liberty litigation.
MR: So, that’s analysis of the opinion handing Ramirez the victory. But linger with me on that word “victory.” Ramirez won the right to be executed … under certain conditions. But now with the lengthy and complex litigation finally at an end, that’s a signal that Ramirez’s life is nearing its end.
JR: But then … a series of twists and turns. A power struggle erupted among Texas politicians about whether the state is even going to allow the death penalty. Mark Gonzalez is the DA of Nueces County. He announced his stance on Facebook Live in April. Three weeks after the Supreme Court decision.
MARK GONZALEZ: I have for a while now said that, I don't believe in the death penalty, my office is not going to seek the death penalty anymore. And that's just the way I feel….And I admit that there are some very bad and evil people out there. But I don't feel that the government should have that power to put people to death.
MR: D.A. Gonzalez wants that execution date removed, but a judge denied that. Ramirez told me in our interview that he wouldn’t appeal anything further once the Supreme Court permitted his pastor to accompany him to the execution chamber. Yet, an appeal is pending right now to remove the execution date.
JR: As of the air date for this podcast, John Henry Ramirez still has an execution date set for October 5th.
SOUND: PRISON DOOR CLOSE
MR: Legal Docket is produced by the creative team at WORLD Radio. I’m Mary Reichard.
JR: Our script editor is Nick Eicher. Our producer and technical engineer is Paul Butler. Lillian Hamman and Bonnie Pritchett gave audio support. Caleb Bailey read the statement to the court from Pablo Castro, Jr.
MR: We want to thank the people who took time with us on this episode:
John Henry Ramirez. Fallon Wood. Pastor Dana Moore. Kent Scheidegger. Lawyers John Bursch, Seth Kretzer, Robert Blecker, Hiram Sasser, Lael Weinberger, and Daniel Chen.
John Greil gave us background on prison grievance procedures, and the Second Baptist Church’s Death Row Visitation Team patiently explained things to us, even though we didn’t use their voices. Special thanks Jan Trujillo who kept me updated on new developments.
JR: We really appreciate your ratings and reviews. We’re eager to know what you think about this episode, too. Would you take a moment to review us on whichever platform you listen? That makes it easier for others to find us and helps us move up the charts.
MR: What also helps reach more people is old-fashioned word of mouth: Tell a friend about the Legal Docket podcast. Please and thank you.
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