The Religious Life of Legal Death

• In Event: Critical Perspectives on Civil Rights & Citizenship

Abstract

This article interrogates the appeals made to religious free exercise in contemporary death penalty jurisprudence. Through an engagement with the legal archives in Dunn v. Ray and Ramirez v. Collier, I argue that as condemned individuals increasingly challenge state and federal laws that prohibit spiritual advisors from providing counsel to the condemned at the moment of their deaths, religion emerges as a site through which the violence of the state – in its executionary posture – is at once revealed, concealed, and compounded. More precisely, I determine that physical and aural manifestations of religion in the execution chamber – such as chanting, the laying of hands, the deliverance of prayers and last rites, the sacrament of the Eucharist – collapse the distinction between “the body” and “the soul” that the Court worked to cultivate in cases like Glossip v. Gross and Baze v. Rees. I further determine that this collapse illuminates not only the ways in which ordinary individuals (such as priests, wardens, and witnesses) have become the ultimate agents of rationalized retribution, but also how legal fictions of secularism may obscure the totalizing nature of American carceral life. Religion, I thus suggest, operates as a conduit through which the cruel and unusual nature of modern capital punishment is amplified – even as a popular focus on the realization of free exercise rights renders such amplification hidden. Absent critical intervention, I conclude, the ideals of the First Amendment will function to legitimate continued violations of the Eighth Amendment.

Author

• Kathryn A. Heard, Whitman College