After two years of barring all spiritual advisers from the state’s execution chamber, the Texas Department of Criminal Justice has wisely reversed course. On April 21, the TDCJ announced a new policy allowing the condemned to be accompanied by a spiritual adviser of their choosing at the time of death, provided the adviser passes a routine security and background check.
This is an overdue and welcome return to acknowledging the religious rights and basic humanity of those the state puts to death through lethal injection. However, as a newspaper that’s long been opposed to the death penalty, we believe that there’s much more work to do — especially in regard to post-conviction DNA testing.
We first called on the state to end its ill-advised policy in June 2020 when we made it clear “we believe that to deny the condemned the right to have a religious leader present is to deny their humanity.” The TDCJ’s decision is therefore gladly received. But how we arrived here and what this decision means for the 203 Texas inmates currently on death row, five of whom are scheduled to be executed by year’s end, merits further scrutiny.
The controversy began back in March 2019 when the TDCJ denied convicted murderer and one of the infamous “Texas Seven,” Patrick Murphy, his request to have a Buddhist spiritual adviser in the execution chamber. At the time, the state policy was that only TDCJ-employed chaplains — either Christian or Muslim — were allowed in the chamber. Murphy argued that was religious discrimination.
The Supreme Court agreed, halting Murphy’s execution and suggesting one of two remedies: Either allow all spiritual advisers — regardless of faith or religious affiliation — into the execution chamber; or allow none. The TDCJ chose the latter remedy and unwisely barred all spiritual advisers from the execution chamber.
The state seemed to follow the advice of Justice Brett Kavanaugh, who wrote in a concurring opinion at the time, “governmental discrimination against religion — in particular, discrimination against religious persons, religious organizations, and religious speech — violates the Constitution.” The choice of remedy is up to the state, he continued. But “What the state may not do, in my view, is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room.”
While we agree with Kavanaugh that allowing Christian and Muslim advisers into the execution chamber but not advisers from other faiths and traditions was discriminatory, we disagree that barring all religious advisers was a valid or constitutional remedy.
Indeed, on June 16, 2020, just over an hour before the scheduled execution of Texas inmate Ruben Gutierrez for the 1998 murder of an 85-year-old Brownsville woman during a robbery, the Supreme Court stepped in and granted Gutierrez, a Catholic, a reprieve so that a lower court could consider his request to allow a chaplain in the execution chamber.
With the lower court’s decision still pending, the TDCJ reversed the policy, making it a moot point. But what seems certain is that the now 43-year-old Gutierrez — who to this day says he is innocent of capital murder and that a DNA test of existing evidence will prove it — would have been executed in 2020 had the Supreme Court not stepped in.
In March, a federal district court judge ruled in favor of Gutierrez’s request for DNA testing. But the state filed an appeal, arguing, in part, that under Texas law his case is ineligible for DNA testing because as “a party to the crime” of capital murder he is subject to the death penalty whether or not he was the actual killer, or simply involved in a robbery that resulted in capital murder.
But it’s fair for concerns to extend further than that. It seems clear that Gutierrez ended up on death row, as opposed to life in prison, in part based on the belief that he was the person who repeatedly and brutally stabbed an 85-year-old woman. DNA tests aren’t perfect, and one of their shortcomings is that the lack of DNA doesn’t necessarily prove innocence. Rather, DNA found at the scene of a crime tells only part of the story of the crime. In this case, Gutierrez believes a test will show not his but someone else’s DNA on the fingernail scrapings taken from the victim after her murder, and we believe it will only serve justice to know precisely what the DNA test shows. In that way, we can form a more complete understanding of what happened.
As we’ve pointed out in the past, according to the Innocence Project, a nonprofit that works to prevent and overturn wrongful convictions, of the 375 people exonerated through post-conviction DNA testing to date, 130 (more than 34%) were convicted of murder. Twenty one were on death row.
But total exoneration is not the only alternative. Since 1976, when Texas reinstated the death penalty, more than 230 individuals sentenced to death have had their sentences or convictions commuted or reduced. According to his attorney, Gutierrez, a man who has already spent more than half his life behind bars, still has faith that the state will grant his request, and the result will save his life.
Dallas Morning News