Next week, Wesley Ira Purkey is scheduled to be put to death at the federal prison in Terre Haute, Indiana, when the federal government resumes executions after a 17-year hiatus. Purkey was found guilty and sentenced in the U.S. District Court for the Western District of Missouri for the 1998 murder of a 16-year-old girl.
On July 2, the American Civil Liberty Union’s Capital Punishment Project filed suit seeking to stop his execution. The suit claims that proceeding with it would deprive Purkey of religious liberty since his long-time Zen Buddhist spiritual advisor would not be able to be present.
It notes that both the Religious Freedom Restoration Act passed by Congress in 1993 and the Federal Bureau of Prison’s own regulations protect the right of federal prisoners, including those on death row, to consult with religious advisors of their own choosing.
The ACLU suit was filed on behalf of Purkey’s advisor Dale Hartkemeyer, who goes by the religious name Seigen. Seigen visited death row every month from January 2009 until the start of the pandemic to offer the condemned man spiritual guidance and comfort.
The cleric argues that because he suffers from illnesses that make him particularly susceptible to the novel coronavirus, it would be unsafe for him to be present at Purkey’s execution. As the lawsuit notes, prisons, including the Terre Haute facility, are well-known COVID-19 hot spots.
In a recent blog post Seigen claimed that “I’m being asked to make an impossible decision — violate my religious beliefs or risk my health and life by attending an execution that could become a ‘super-spreader’ event for COVID-19.”
He explained that “In order to help provide for a peaceful state of mind and a proper transition and liberation, it is my sacred religious duty to be at Mr. Purkey’s execution. My failure to be there would, for me, constitute a troubling violation of my religious tenets and priestly obligations.”
Seigen’s words and the ACLU’s suit offer powerful examples of the role of the sacred in legal proceedings, and test the depth of the Trump administration’s commitment to protecting religious liberty.
Religion has, of course, long played an important part in Anglo-American execution rituals.
In 16th and 17th century England, executions were staged to provide opportunities for spiritual redemption for the condemned. Priests or ministers were present to facilitate a “penitent end” and to ease the passage from this life to the next.
Similar practices found a home in American colonial executions and the death penalty system throughout this nation’s history. They have been lionized in popular cultural portraits of scenes of execution, most importantly in the film Dead Man Walking.
The right to have a religious advisor present at an execution also has been the subject of several recent Supreme Court decisions. Those decisions have not, however, definitely clarified the rights of those condemned to die or of their spiritual advisors.
Thus in February 2019 the Court vacated a stay and let Domineque Ray’s execution proceed, even though the state of Alabama had denied permission for an Islamic cleric to accompany him to the death chamber. Under the state’s policy, a Christian minister would have been accorded such a privilege. Yet the Court ignored this blatant religious discrimination and held that Ray had waited too long to file his suit.
As Justice Kagan pointed out in her dissent, “If an inmate practices a different religion—whether Islam, Judaism, or any other—he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.”
The Court, Kagan argued, had cast aside a meritorious claim “just so the State can meet its preferred execution date.”
The Ray decision prompted fierce criticism. Some characterized it as a troubling example of anti-Muslim prejudice. Others, including conservatives, denounced the decision as inconsistent with respect for religious belief.
One month later the Court abruptly changed course and stopped the execution of a Buddhist inmate in Texas because he was not being allowed to have the spiritual adviser of his choice present when he was to be put to death. The Court said that because Texas allowed Christian and Muslim religious leaders at executions it could not execute Patrick Murphy without his Buddhist adviser.
Justice Brett Kavanaugh, concurring in the judgment, saw the Texas policy not only as an instance of discrimination among religions but also as an insult to all religious believers. “As this Court has repeatedly held,” he noted, “governmental discrimination against religion – in particular, discrimination against religious persons, religious organizations, and religious speech – violates the Constitution.”
Texas responded to the Court’s ruling by banning all clergy from the death chamber. The Texas Catholic Conference of Bishops protested, saying that the ban contradicted long-standing American practice. The Bishops also argued that “To deny a prisoner facing imminent execution access to spiritual and religious guidance and accompaniment is cruel and inhuman.”
Last month the Supreme Court agreed to examine whether the new Texas policy violates the First Amendment guarantee of freedom of religion and halted Ruben Gutierrez’s execution because he was not allowed to have a chaplain accompany him.
These decisions provide the jurisprudential context for the ACLU’s suit.
There are however many reasons why Purkey’s execution should be stopped. Among them is the fact that he had a long history of childhood trauma, was sexually abused by family members and a Catholic priest, and was beaten by other family members. He has also expressed deep remorse for his crime.
In addition, he now suffers from schizophrenia, Alzheimer’s disease, dementia, and extensive traumatic brain injuries and is, as a result, unable to meet the constitutional requirement that he be able to comprehend why the government plans to execute him.
Adding to those reasons is the burdening of religious freedom that Seigen’s case highlights.
President Trump often has trumpeted his belief in the importance of such freedom. As he explained in January, “Our Founders understood that no right is more fundamental to a peaceful, prosperous, and virtuous society than the right to follow one’s religious convictions.”
The case filed by the ACLU offers an ideal opportunity for Trump and his administration to turn its rhetoric into action. Yet so far it has seemed more interested in carrying out Purkey’s execution than it protecting his right to practice his religion in his last moments on earth and Seigen’s right to assist him.
As Seigen himself noted, “Although Trump officials have repeatedly claimed the mantle of guardians of religious liberty, too often their commitment wavers when it is inconvenient for their political agenda. This appears to be one of those times.”