Right to Spiritual Advisors During Executions: Missouri’s Latest Refusal and the Supreme Court’s Evolving Jurisprudence

By: Britane Hubbard

            On Tuesday, February 7th, 2023, Missouri executed Leonard “Raheem” Taylor, despite serious questions raised regarding his innocence[1] and without his spiritual advisor  The Missouri Department of Corrections (MDOC) denied Taylor’s request, made the day before his execution, to have his spiritual advisor present in the execution chamber to pray with him.[3] On that same day, MDOC shared that its alleged reasons for the spiritual advisor denial was because (1) Taylor previously waived his right to have witnesses present; thus he was too late in asking and (2) MDOC was “unable to reasonably accommodate this request due to institutional security concerns related to changing the protocol at this late hour.” [4]

            Understandably, requiring Taylor to be strapped down and executed alone, without the presence of his requested spiritual advisor, outraged many such as the Missouri NAACP and Taylor’s spiritual advisor Anthony Shahid.[5] Mr. Shahid, who Taylor’s attorney said was already approved to visit Taylor at another facility, questioned whether his exclusion from the execution was related to Taylor being a Black man and a Muslim, and a violation of Taylor’s “civil and religious rights.” [6]

            Did the exclusion of Taylor’s spiritual advisor break the law? The answer lies within both the Prison Litigation Reform Act (PLRA)[7] and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).[8]

Under RLUIPA, the Supreme Court has held that States must allow spiritual advisors to be present in the execution  But, first, a prisoner seeking relief under RLUIPA must have satisfied the requirements of the Prison Litigation Reform Act (PLRA).[10] “PLRA requires incarcerated individuals to exhaust the prison’s administrative grievance process before turning to the courts. . .” Thus, whether the exclusion of Taylor’s spiritual advisor broke the law depends first on his exhaustion of MDOC’S grievance procedures. MDOC “utilizes a three-step procedure for its administrative remedy system for prisoners: an Information Resolution Request (“IRR”), a Grievance, and a Grievance Appeal.”[11] Requirements for all three steps must be followed by the prisoner to be “considered under [PLRA].”[12]

However, complicating the grievance procedure process is the unique circumstances that a scheduled execution date imposes on time constraints.[13] Missouri Revised Statute §546.740 and MDOC’s Department Procedure Manual provides that an offender may have at their execution “clergy or religious members” as witnesses. MDOC’s Manual further specifies that the “offender shall request his/her execution witnesses at least two weeks prior to the scheduled execution date.” [14] What is unclear in Mr. Taylor’s case is whether he had an opportunity to trigger MDOC’s grievance procedure after he was informed his spiritual advisor would be excluded from the execution chamber the day before his execution, or whether a prisoner’s right to file a grievance in the execution context is extinguished at the arbitrarily set date to request in the prison’s policy.

The  Supreme Court’s jurisprudence around spiritual advisors is still evolving.[15] In its most recent case Justice Sotomayor wrote a concurrence to clarify PLRA’s role in cases like Taylor’s. Notably, she emphasized that although “incarcerated individuals still bear the burden of timely raising execution-related claims, prisons still must ensure that administrative remedies are available, which may require modifying procedures to account for the time constraints of a scheduled execution.”[16]  Justice Sotamoyor further clarified that “[w]here an administrative process does not facilitate addressing execution-related claims within the timeframe of a scheduled execution, it is likely not an “available” remedy that must be exhausted under the PLRA.”[17] This raises a question as to whether Missouri’s two-week requirement to make the request would even be enough time to exhaust MDOC’s grievance procedures and then properly

What constitutes “timely” has differed in other Supreme Court cases involving spiritual advisors. In Dunn v. Ray the court “permitted Alabama to execute a Muslim man. . .after the state refused to allow [him] to have an Imam at his side in the execution chamber,  the state at that time allowed a Christian chaplain in the chamber.” [18] The Court stated this decision was made “[b]ecause Ray waited until [10 days before execution] to seek relief.” [19] Later, in Ramirez v. Collier the court found the petitioner’s grievance filed three days after learning of the prohibition of his spiritual advisor’s touch was timely filed.[20] Though, the petitioner’s grievance in Collier was still filed months before his scheduled execution date.[21]

Consequently, Taylor’s request, made only a day before the execution, may have been deemed untimely. Sotomayor addressed this timeliness concern in her concurrence with Collier, stating that “incarcerated individuals should know that delays in raising their requests can result in denial.”[22] But given the unique circumstances surrounding executions, consideration should be given to whether the deadlines being imposed by prisons on inmates to have a spiritual advisor present at their executions are themselves a substantial burden on their religious exercise in violation of RLUIPA. In Taylor’s case, the warden refused to allow his Iman to be present at the execution, yet allowed a special visit earlier in the day–raising questions about MDOC’s policy arbitrarily burdening religious exercise.[23] Given that the Court’s jurisprudence in this area is evolving and that it has taken up a spiritual advisor case each session for the last four years[24], it is possible that a case similar to Taylor’s could clarify the timeliness requirements and their effect on an incarcerated person’s “interest in religious exercise”

[1] Innocence Project Statement on the Execution of Leonard ‘Raheem’ Taylor, Innocence Project (Feb. 7, 2023), https://innocenceproject.org/innocence-project-statement-on-the-execution-of-leonard-raheem-taylor/.

[2] Kim Bell, Lawyers for Leonard Taylor Say Missouri Executed Him Before His Appeals Ran Out (Feb. 9, 2023), https://www.stltoday.com/news/local/crime-and-courts/lawyers-for-leonard-taylor-say-missouri-executed-him-before-his-appeals-ran-out/article_0903e0aa-9873-5c09-b3c7-3289e039fa4b.html.

[3] Id.

[4] Katie Moore & Luke Nozicka, Leonard Taylor Not Allowed Spiritual Advisor at Execution. Warden Says He Asked Too Late (Feb. 7, 2023), https://www.aol.com/news/leonard-taylor-not-allowed-spiritual-173055064.html.

[5] Id.

[6] Id.

[7] Prison Litigation Reform Act of 1995 (PLRA), 42 U. S. C. §1997e(a).

[8] 42 U.S.C. §2000cc-1(a).

[9] See Gutierrez v. Saenz, 141 S. Ct. 127, 128 (2020) (granting a stay of execution and thereafter requiring the district court to determine “whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prison wishes to have in his immediate presence.”), Dunn v. Smith, 141 S. Ct. 725 (2021) (Kagan, J., concurring) (denying application to vacate injunction barring Alabama from executing an inmate without his “pastor by his side”), and  Ramirez v. Collier, 142 S. Ct. 1264, 1284 (2022) (finding that under RLIUPA a spiritual advisor may be allowed into the execution chamber and engage in audible prayer and religious touch).

[10] PLRA, supra note 7.

[11] Hinson v. Missouri E. Corr. Ctr., No. 4:22-CV-785 NAB, 2022 WL 4378833 at 11 (E.D. Mo. Sept. 22, 2022).

[12] Id.; see also Woodford v. Ngo, 548 U.S. 81, 85 (2006) (“Exhaustion of available administrative remedies is required for any suit challenging prison conditions, not just for suits under § 1983.”).

[13]  Collier, 142 S. Ct. at 1284 (Sotomayor, J., concurring).

[14] Missouri Department of Corrections Changes Policy for Witnessing Executions, ACLU (Nov. 27, 2018), https://www.aclu-mo.org/en/news/missouri-department-corrections-changes-policy-witnessing-executions


[15] See Dunn v. Ray, 139 S. Ct. 661 (2019), Gutierrez v. Saenz, 141 S. Ct. 127 (2020), Dunn v. Smith, 141 S. Ct. 725 (2021),  Ramirez v. Collier, 142 S. Ct. 1264 (2022).

[16] Collier, 142 S. Ct. at 1284 (Sotomayor, J., concurring).

[17] Id. at 1285.

[18] Dunn v. Ray, 139 S. Ct. 661 (2019). Amy Howe, Court to Clarify the Right of Death-Row Inmates to Receive Spritiual Guidance During Execution, SCOTUSblog (Nov. 8, 2021, 12:59 PM), https://www.scotusblog.com/2021/11/court-to-clarify-the-right-of-death-row-inmates-to-receive-spiritual-guidance-during-execution/ (citing Dunn, 139 S. Ct. 661 (2019)).

[19] Dunn, 139 S. Ct. 661 (2019) (a 5-4 decision  highlighting the disagreement of the Court around spiritual advisors).

[20]  Collier, 142 S. Ct. at 1276–77.

[21] Id.

[22] Id. at 1285 (Sotomayor, J., concurring).

[23] See Katie Moore & Luke Nozicka, supra note 4.

[24] See cases cited supra note 15.

[25] Collier, 142 S. Ct. at 1283.