Two Very Different Executions Show the Supreme Court's Anti-Blackness and Islamophobia

By Dr. Maha Hilal, ThinkProgress

30 March 19

The cases must be considered in the context of other Islamophobic decisions – most recently, the Muslim Ban.

f there were any lingering doubts about the Supreme Court’s anti-blackness and Islamophobia, the recent decision to stay the execution of a Texas man who was denied a Buddhist spiritual adviser should put them to rest.

The Supreme Court ruled on Thursday to grant a stay on the execution of Patrick Henry Murphy unless the state permits his Buddhist spiritual adviser to be in the execution room with him.  

In contrast, last month, when Alabama death row prisoner Domineque Ray, a black Muslim, appealed for a stay on his execution because the Alabama Department of Corrections would not allow him to have an Imam present in the death chamber, the Supreme Court vacated his appeal. Ray was later executed with his Imam viewing his death from an adjacent room.

Ray’s appeal was denied on a technicality. His initial petition to the warden was denied on January 23, 2019. Five days later, he filed a lawsuit in federal court. The Supreme Court said he waited too long.

When it came to Patrick Henry Murphy, a white death row prisoner who converted to Buddhism, Justice Brett Kavanaugh stated in part that, “As this Court has repeatedly held, governmental discrimination against religion—in particular, discrimination against religious persons, religious organizations, and religious speech—violates the Constitution. The government may not discriminate against religion generally or against particular religious denominations.”

Kavanaugh goes on to say, “Buddhist inmates such as Murphy—who want their religious adviser to be present can have the religious adviser present only in the viewing room and not in the execution room itself for their executions. In my view, the Constitution prohibits such denominational discrimination.”

However, as Ray’s case reveals, this reading of the Constitution is selectively applied. For example, SCOTUS stated in Ray’s case that the plaintiff “has not made any showing that the State’s provisions for religious accommodations to death row inmates, which permit a prisoner to commune with his advisor up until the moment that he enters the execution chamber, amount to a ‘substantial burden.’”

This orientation toward Ray reveals something more blatantly sinister – namely that religious freedom in his case was determined by whether or not he had sufficiently articulated the lack of it as a burden, not whether or not he was entitled to religious freedom in the first place without qualification.

Moreover, what the two cases in contrast reveal, is that the issue of “process” and “procedure” used to deny Ray of a spiritual adviser in the death chamber was nothing more than a thinly-veiled disguise to the overt anti-blackness and Islamophobia at play. That’s why SCOTUS could unabashedly state in Murphy’s case that, “The State may not carry out Murphy’s execution pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.”  

But the failure on the Court’s part to define “timely” raises serious doubts. What counts as “timely” when there appear to be no standard processes in place and no time periods designated to notify death row prisoners of what their final moments will look like and who will be there?

Furthermore, Ray’s case cannot be viewed in isolation. It must be considered in the context of other Islamophobic decisions – most recently, the Muslim Ban. Together, the two cases illustrate the question SCOTUS repeatedly seeks to answer when it comes to Muslims: that of how to restrict or deny religious freedom, rather than that of whether their religious freedom has been violated.

Moreover, what the Murphy case so poignantly reveals is the Court’s decided lack of concern over accusations of hypocrisy and bias against Muslims. The lesson here is that SCOTUS will likely continue granting religious freedom selectively – with scarcely any attempt to hide it.  

Though Domineque Ray was executed with the knowledge that his religious freedom was conditional, many Muslims — including Ray’s Imam, Yusef Maisonet, who viewed the execution from a room adjacent to the death chamber — will continue to bear witness to this injustice. Preserving the notion that the United States upholds religious freedom means extending it to all, not some. But like other values the U.S. claims to hold, this one remains unfulfilled.

And in Ray’s case, it’s buried in a grave.

William Barr Should Release the Full Mueller Report as Soon as Possible

By Sally Yates, The Washington Post

30 March 19

merica’s justice system is built upon one thing — truth. When witnesses give testimony, they are sworn to tell “the truth, the whole truth, and nothing but the truth.” The word “verdict” derives from the Latin term “veredictum,” meaning “to say the truth.” Special counsel Robert S. Mueller III, a public servant with impeccable integrity, was entrusted to find the truth regarding Russian interference in the 2016 election and has spoken through a comprehensive report that details the facts that he uncovered.

Yet a week after Mueller issued his report, we don’t know those facts and have only been provided with Attorney General William P. Barr’s four-page summary of Mueller’s estimated 400-page report. It is time for the American people to hear the whole truth. We need to see the report itself.

First, as the attorney general’s letter to Congress notes, the Mueller report “outlines the Russian effort to influence the election and documents crimes committed by persons associated with the Russian government in connection with those efforts.” Congress has a solemn responsibility to protect our democracy. Without access to the full factual record of what the special counsel uncovered, it cannot fulfill that mandate. As you read this, the Russian government is undoubtedly hard at work to undermine our next election. Each day that passes without Congress having access to the full Mueller report is a day that Congress is prevented from doing its job of keeping our elections free from Russian espionage efforts.

Second, Barr’s letter leaves important questions unanswered concerning what then-candidate Donald Trump and his associates knew about Russian interference, and how they responded to Russian overtures to assist the campaign. While Barr’s letter states that the investigation did not establish that the campaign reached an agreement with the Russian government to take actions to impact the election in Trump’s favor, it reveals that the campaign did field “multiple offers from Russian-affiliated individuals to assist the Trump campaign.” Yet President Trump and others have repeatedly claimed that they had no contact with Russians, or knowledge that Russians were acting to assist his campaign. Moreover, the Trump campaign did not bring the Russian outreach to the attention of law enforcement but secretly allowed a foreign adversary’s assistance. Remarkably, after the release of the Barr letter — which makes it undeniable that the Russians were seeking to help the Trump campaign — the president still denies it. Why? Why was the Trump campaign willing to allow the help of one of the country’s foremost geopolitical adversaries rather than report the overtures to law enforcement? And, as importantly, does the role that the Russians played in his election have any bearing on Trump’s current approach toward Russia? Only by seeing the full Mueller report can Congress and the American people make an informed assessment.

Third, until the Mueller report is released by the attorney general, Congress and the American people will not be able to evaluate the president’s conduct with respect to obstruction of justice. Existing Justice Department policy prevents the criminal prosecution of a sitting president. The department’s institutional view is that a congressional hearing room, not a federal courtroom, is the proper forum for the evaluation of presidential misconduct. According to Barr’s letter, the Mueller report details evidence of potentially obstructive conduct, but it does not reveal what that evidence comprises. Until Congress is provided the full report, it cannot evaluate the seriousness of the evidence. And we, the American people, cannot make our own evaluation.

Barr has indicated that he will provide Congress a redacted version of the report within weeks. There are legitimate reasons to make narrow redactions to the report provided to Congress. For example, testimony before the grand jury, as well as classified information that the intelligence community believes should remain classified, should not be provided in a report that will ultimately be made public. But the attorney general has great discretion in determining how these exceptions are defined and what information is excluded. The Justice Department should expeditiously provide to Congress a redacted version of the report that identifies the basis for each redaction, and those redactions should be drawn as narrowly as possible. The redacted report should clearly identify whether the president is seeking to shield information from disclosure based upon an assertion of executive privilege, and redactions to withhold information that is deemed merely “sensitive” should not be accepted without clear justification.

Barr has correctly noted that this is a matter of significant public interest. Indeed, the investigation was not about some tangential issue. It was about a foreign adversary’s attempt to subvert our election; it cuts to the very core of our democracy. It is absolutely essential that our country move forward with a common set of facts. And regardless of whether those facts comport with one’s political preferences, we should all be willing to accept the facts, whatever they may be. The American people need to know what happened. We can handle the truth.