Johnson v. Levy mandates such an exemption, under the new Tennessee religious exemption statute (a state analog of the federal Religious Freedom Restoration Act). For reasons I discuss in my A Common-Law Model for Religious Exemptions article, I think such state statutes are generally a good idea (though I quibble with their wording), even though I think that the Court was correct in reading the Free Exercise Clause as not compelling religious exemptions as a federal constitutional matter.
Nor can court decisions such as this one be criticized on the grounds that the courts, by granting religious exemptions under such statutes, are overriding the will of the political branches. Rather, they are implementing the will of the political branches, as expressed in the religious exemption statute. Under such statutes, courts are supposed to decide whether some religious exemption requests should be granted, at least in the first instance. And if the legislature disagrees with the ruling, and concludes that such autopsy rules should indeed be applied across the board with no exemptions, it could easily prevent such exemptions in the future, simply by amending the exemption statute to specifically exclude autopsy rules.
Note that, as I mention in my article, religious exemption statutes could be faulted for unduly preferring religious objections over deeply held conscientious objections. But they could also be read as covering both, much as some federal laws (including the conscientious objector exemption to the draft, and Title VII’s religious accommodation provisions) have been so read.
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
neurodoc says:
It was a relief to see that Johnson was the appellee and Levy the appellant, rather than the other way around. I wonder about the rest of Mr. Johnson’s religious principles were and where they were at an earlier time, though.
January 15, 2010, 4:01 pmA. Criminal says:
Here’s an interesting fact: after Johnson was dead, he didn’t have any religious beliefs.
http://www.clarkprosecutor.org/html/death/US/johnson1185.htm
“Summary: [Cecil C.] Johnson walked into Bob Bell’s Market where the owner’s 12-year-old son was told to empty the cash register. Johnson then shot the boy in the head, wounded his father and a friend in the store, and gunned down James Moore and Charles House outside while they sat in a taxicab. In 1987, Johnson was one of two death row inmates convicted in the 1985 beating death of fellow prisoner Laron Williams at the old Tennessee Penitentiary.”
So – exactly what was this guy’s religion when he was alive? (As far as I could tell, they were careful not to mention his religion in your first link.) Clearly he didn’t have any qualms about “desecrating” his victims bodies, so it must’ve been some shiny new “no desecrating allowed” religion that he picked up in prison (from a dirty tattoo needle perhaps…) I suppose it’s all well and good, though, that legislators at various levels, including Congress, make lots of laws respecting establishments of religion.
January 15, 2010, 4:06 pmChris Travers says:
I am not familiar with chancery courts elsewhere in the US.
Does this mean that the court was “chancery” (i.e in a hopeless predicament) in the view of the panel? Or that Tennessee has a different legal system than the rest of us?
January 15, 2010, 4:37 pmneurodoc says:
I fully understand your skepticism about the nature and sincerity of the late Mr. Johnson’s religious beliefs. But the it seems the lower court saw no reason to question them in light of a “pastor’s” affidavit saying they were genuine.
This case might be cited by Professor Volokh in support of his concern about “unduly preferring religious objections over deeply held conscientious objections.”
January 15, 2010, 5:06 pmFredrik Nyman says:
What exactly is the point of performing an autopsy? One would think that the state has a pretty good idea what the cause of death was, having performed the execution.
January 15, 2010, 5:10 pmFub says:
Neither AFAIK.
Chancery courts is another name for a court sitting in equity, as distinct from law. I think the term “chancery” derives (or is corrupted) from “chancellery”, the office of chancellor.
In English common law, IIRC the chancellor’s courts were the first to issue equitable judgments, as distinct from legal judgments.
FWIW, when I was a kid and first heard of chancery court in my state, I thought it was where they rolled dice to reach a decision.
January 15, 2010, 5:20 pmCan't find a good name says:
Chris Travers: To follow up on Fub’s comments, historically (and this is an oversimplification), one would go to the courts of law if one was seeking a monetary judgment, and to the courts of equity or chancery if one was seeking an order by the court for someone else to do something or not do something (i.e. an injunction).
These distinctions are less significant in the contemporary United States than they were in, say, 18th century England. However, they do still exist in a limited way. In this case, Sarah Johnson wanted the medical examiner to be ordered not to do an autopsy of her husband. That’s a claim for an injunction, not for money, so in a jurisdiction which distinguishes between courts of law and courts of chancery, it would be heard in the court of chancery.
January 15, 2010, 5:32 pmChris Travers says:
Ok. I guess I haven’t lived in a state with a chancery court since I was a small kid. It seems to be a thing for the east coast?
January 15, 2010, 6:30 pmSandy MacHoots says:
There are any number of killers and other serious felons in prison who insist on following the dietary rules of their religion. Johnson’s claim is no stranger than Mumia abu Jamal’s insistence that he not have to eat pork in prison.
But once you’re dead I don’t think you have any more constitutional rights. Whether Johnson goes to Heaven or Hell (or to simple decomposition), the last thing he’s going to have on his mind is what they’re doing with his corpse. I’d think the more significant intrusion would be on the family’s religious beliefs — having to know that the corpse was descrated — but that doesn’t seem to be the case.
January 15, 2010, 7:16 pmChris Travers says:
In my tradition, proper care of the body is a great help in achieving the proper afterlife in a timely fashion.
January 15, 2010, 7:30 pmSoronel Haetir says:
And there’s always the fun of New York’s Supreme Court judges being something other than appelate judges. I figure that for most states it’s mostly the same, carry over tradition from a time when it mattered.
January 15, 2010, 8:02 pmEli Rabett says:
What is the purpose of this stupid law except ritual mutilation? Anyone wanna try?
January 15, 2010, 8:39 pmbillo says:
“What exactly is the point of performing an autopsy? One would think that the state has a pretty good idea what the cause of death was, having performed the execution.”
As a forensic pathologist who has examined executions, though primarily extrajudicial, I can answer that.
First, one can address the issue of “cruel and unusual.” Can someone tell if someone has been killed “humanely?” Well, of course, that depends on how finely one wants to define “humane,” but certainly one can use information from an autopsy to determine that one was *not* killed “humanely.” In cases of judicial execution preceded by beating, starvation, neglect, or torture, as occurs in some countries, autopsies can tell that this occured. In cases of judicial execution in which there are technical issues in the execution — particularly beheading and hanging — one can find evidence of extended survival associated with the act. In cases of judicial execution that are inherently painful, such as stoning, one can find evidence of the multiple injuries prior to death. I think the older studies regarding the differences in judicial versus extrajudicial hanging is pertinent here, and demonstrate exactly this point.
With respect to lethal injection, there are some things that would be important to know, including the levels of the drugs that are used to supposedly ensure that this method is not “cruel.” This is particularly apropos since many of the objections raised to this involve stories where inadequate sedatives/hypnotics were allegedly used.
Further, of course, an autopsy can reveal associated injuries that can lead to charges of abuse and mutilation of the body. For instance, in some countries, bodies are dismembered, mutilated, dragged, or displayed following execution. The changes associated with this can be documented at autopsy.
The examination of victims of judicial execution may reveal other issues that pertain to the crime itself — unsuspected brain tumors or anomalies, metabolic abnormailities, etc. that may provide insight, if not excuse, for the acts for which the victim was executed.
In fact, since most of the evidence derived from the examination of the victims of judicial execution would be primarily useful in showing that they were, in some way, “cruel” if not “cruel and unusual,” I would think that those who oppose capital punishment (such as myself) would clamor *for* the autopsy of such victims rather than pinch our noses and pretend to such moral superiority by opposing such examinations. It is usually those who support capital punishment who most oppose such postmortem examinations.
January 15, 2010, 11:47 pmEli Rabett says:
Billo, you gotta be kidding. So we slice the clown’s head off to see what’s stuffed inside?
January 16, 2010, 12:12 amDennis N says:
In that case, if the soon to be decedent objects to being autopsied, his wishes should be respected. If he is claiming abuse, he needs to step up and make the claim. If not, then there is no overriding State need to know.
Most of your examples, beheadings, hangings, dismemberments, and draggings, are obviously irrelevant to a lethal injection.
The guy is dead. His debts are cancelled. Leave his corpse alone.
January 16, 2010, 11:13 amChris Travers says:
Understood, but then if the inmate requests not to be autopsied, why should that be a problem?
Sort of in line with my comments about criminals who REQUEST the death penalty and ask for no appeals, and the various groups opposing the death penalty who insist on writing the governor “on their behalf.” (Not to say there aren’t good reasons to oppose the death penalty, but when denying prisoners any semblance of dignity…..)
January 16, 2010, 1:01 pmKen Arromdee says:
The state has a need to know if its procedures are doing what they’re supposed to, and abuse is not what they’re supposed to be doing.
The prisoner should not be able to say “you have no need to find out if I’m abused” for the same reason that he can’t demand to be abused in the first place.
January 16, 2010, 3:00 pmChris Travers says:
So, are you opposed to the RFRA-type act in question here as a policy matter? Opposed to the court ruling in this question? Or something else?
Also, if a prisoner consented to being assaulted by prison guards or other prisoners, should a consent defence be allowed at all? Certainly if I go up to someone and ask to be assaulted (or even pay someone TO assault me) then consent becomes a factor, no?
(Obviously this doesn’t matter in cases of murder since one cannot consent to be killed in our legal system.)
January 16, 2010, 3:16 pmR. Richard Schweitzer says:
Much seems to have changed since my first legal research assignment some 60 years ago – on ” The Law of Dead Bodies.”
But, leaving that aside; by conviction of criminal acts, particularly capital offences, the individual dead or alive is outside the parameters of “rights.”
Others in the society from which that one has been extracted may commonally recognize and accept some obligations with respect to that individual or the remains thereof, which is a matter entirely outside and extraneous to any Constitutional constraints – though it may yield the same utlimate forms of conduct.
January 16, 2010, 3:17 pmChris Travers says:
This case is statutory, right?
January 16, 2010, 4:26 pmbillo says:
“In that case, if the soon to be decedent objects to being autopsied, his wishes should be respected. If he is claiming abuse, he needs to step up and make the claim. If not, then there is no overriding State need to know.”
Well, no. In fact, forensic pathologists frequently investigate cases of abuse where the victim dies before he or she can make a formal complaint. It is in the public interest to be aware of abuse, even if the victim is silenced or acquiescent — just as it is in the public interest to prosecute domestic violence even if the victim does not want to testify.
“Understood, but then if the inmate requests not to be autopsied, why should that be a problem?”
Because there is a state interest in understanding what happens to these people. If, for instance, death by lethal injection is supposed to be relatively painless and the autopsy shows that it is in fact slow and painful because of the way the drugs are administered (for instance if the IV misses the vein and the sedative is injected into muscle, while the pancuronium and potassium are injected directly), there is a reason to know this.
Second, the natural feeling that decedents or next of kin should be able to refuse a forensic autopsy is one that folk have been fighting for quite awhile. This is particularly true with next of kin refusals; in cases of homicide, it is frequently the next of kin who are the killers, and it is not surprising that they do not want to have an autopsy performed. I know of at least one case, decades ago, where a homicide was determined to be not prosecutable because the spouse (who poisoned her husband) refused autopsy in a jurisdiction where this was possible. Similarly, it is not surprising that advocates of capital punishment are not enthusiastic about the details of deaths associated with judicial execution being understood.
And, in fact, they are not well understood. Even in cases of traditional executions, such as hanging, one would think that we “know” all there is to know about what happens. In fact we do not. In this new age where everything is recorded, a group of investigators has started collecting videos of hangings — both suicidal and judicial — and analyzing what happens. It turns out that what we *thought* we knew about how people died in such cases may largely be wrong. Similarly, death by firing squad, particularly when the method uses a single “live” round, is not necessarily the immediate cinematic death that most people envision.
I think that it needs to be remembered that autopsies and investigations in these cases are done primarily in the interest in the State, not in the interest of the victim. If we, in fact, cared about the interest of the victim in cases of judicial execution, we would not kill them in the first place.
Forensic autopsies are performed for many different reasons — public health, public safety, investigation of crime, etc. While it is rewarding when a family appreciates that our work helps bring a killer to justice or helps stop a dangerous practice or product, it is important that the killer be stopped, the product be recalled, or the consequences of action of the State be understood, even if the family — or victim — doesn’t care.
January 16, 2010, 6:51 pmbillo says:
“Billo, you gotta be kidding. So we slice the clown’s head off to see what’s stuffed inside?”
That was not my point.
January 16, 2010, 6:57 pmreadery says:
Police v. Newark has an objective neutrality standard?
Do we have any evidence a ‘general’ autopsy rule exists? Are there other situations resulting in an exception? If the government makes exceptions for some grounds but not for religion, then it is being objectively non-neutral between religion and these other grounds.
In addition, because the preparation of human bodies for funeral practices has special religious significance in much the way that animal sacrifice does, if not even more universally, it is not clear that the subjective-non-neutrality standard of Lukumi Bablo Aye doesn’t apply. Just as Bablo Aye, which permitted secular animal slaughter practices but not religious ones was considered neutral as based on anti-religious motivation, one would want to scrutinize the record behind the passing of the statute rather carefully to be assured that there was subjective neutrality. Animosity can be rather easy to find if one wants to look for it badly enough.
January 16, 2010, 9:17 pmKen Arromdee says:
I don’t see why. The prisoner doesn’t have most of his rights in jail; why should he retain the right to be assaulted? Cases where it seems a prisoner consents to assault (imagine a prisoner playing football, for instance) are really cases where the prison’s own code, not the prisoner’s permission, allows the assault. The prison could equally force the prisoner to play football, or prohibit him from playing football; if it happens to match the prisoner’s wishes, that’s just happenstance.
January 16, 2010, 11:06 pmR. Richard Schweitzer says:
Travers:
In most cases, probably, but not necessarily.
January 16, 2010, 11:48 pmOren says:
With all due respect, unless there is an explicit will or testament providing otherwise, I see no reason that the State has a better claim on the body of the deceased than the next of kin. The disposition of the body seems no different that the disposition of the decedent’s property.
Sure, the State might benefit from receiving the body, just as much as it would benefit from receiving the contents of the decedent’s bank account. That interest alone, however, seems woefully inadequate to justify your policy.
If there is evidence that foul play is involved, I would see that as an exception to the default rule I proposed above. That’s a much smaller exception than knocking down the (mostly correct, imho) “natural feeling” discussed above. What precisely the State’s burden ought to be is open to question but I think it’s evident that the State carries some obligation to justify acting contrary to the will/NOK.
January 17, 2010, 12:06 pmOren says:
Really? I suppose it’s neither cruel nor unusual nor does it ‘shock the conscience’ but it’s also entirely without a legitimate penal purpose.
Something about it just struck me as bizarre.
January 17, 2010, 12:20 pmChris Travers says:
Could the prison allow prison league boxing matches?
Could the prison require an individual to participate on arbitrary criteria?
January 17, 2010, 2:08 pmChris Travers says:
The point here is that the court concluded there was no Constitutional reason to allow the executed prisoner the right to refuse the autopsy, but that Tennessee statutes had to be interpreted in line with a new statute which heavily protected the right to practice religion.
Hence the court ruled that the statute, not either the State or Federal Constitutional systems required the exception.
This is in line with what you are saying, right?
January 17, 2010, 2:11 pmChris Travers says:
Understood, and that may be adequate for Constitutional reasons. However, the statute in question here requires that interest in question rise to a very high level of need, that the restriction be as minimal as possible, and that each case be justified on its own grounds.
Do you disagree with the court in applying the statute in this case, or in applying the case? Do you disagree with the statute being enacted at all (certainly I am sure many do)?* Or are you merely arguing that there is no Constitutional reason that this can’t be mandated?
* For example, this sort of law makes it much harder to prosecute cases where religious beliefs abridge duties to provide medical care. For example, if a Jehovah’s Witness refuses to take his/her child in for a life-saving but non-emergency blood transfusion, that might not be subject to prosecution, nor would a Christian Scientist who refuses to seek help for his/her child with appendicitis. Nonetheless, I am entirely in favor of strong religious freedom protections.
January 17, 2010, 2:16 pmR. Richard Schweitzer says:
Travers:
By your citation, the statute (in effect) created a “right” much like a will which continued effective following death. So the answer should be yes.
Still, it does seem that the “loss of civil rights” upon felony conviction has been greatly modified in the more than 50 years I have been at the Bar.
However, I think it has been historically the case that the Will of a felon is honored, even if made post-conviction.
January 17, 2010, 3:50 pmreadery says:
The key mark of tyrants is failing to recognize the thing they step on as having any objective existence, and hence as possessing a right not to be stepped on.
A medieval execution, for all its barbarity, was in some ways more advanced than ours because it recognized that the state was not the final end, hence could have no ultimate claim. It recognized there was something out there that was more than the state and which could potentially be offended. It thus sometimes tread carefully, sometimes in ways we moderns might find odd. Thus the device of the executioner requesting forgiveness. And also the device of the state returning the body — leaving bodies to the dogs was done, but it was considered barbarous, something only tyrants do.
With no possibility of there being anything out there that’s more than the state, there is only the state. And thus tyranny not only possible, but quite a simple and easy matter, really.
January 17, 2010, 7:46 pmreadery says:
A century and a half ago we could say “A slave is not a mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man; and he is destined to an endless existence.” And such a sentiment would command some respect
Without that, mere chattel is all there is, and perhaps we shouldn’t expect ourselves to be treated any differently from slaves. Perhaps we no longer deserve it.
Property rights indeed.
The one thing this man has that can’t be taken away, durnst not be taken away, not even by an execution, is a right not to be treated like property.
January 17, 2010, 7:57 pmbillo says:
“If there is evidence that foul play is involved, I would see that as an exception to the default rule I proposed above. That’s a much smaller exception than knocking down the (mostly correct, imho) “natural feeling” discussed above. What precisely the State’s burden ought to be is open to question but I think it’s evident that the State carries some obligation to justify acting contrary to the will/NOK.”
What if the death is merely unexplained? The problem with your conclusion that there must be “evidence of foul play” is that frequently the evidence is not noted until the autopsy. Not all deaths leave bullet holes and knife wounds. In almost all jurisdictions with medical examiners, *all* unexplained deaths fall under the jurisdiction of the Medical Examiner because it is the Medical Examiner’s responsibility to *rule out* foul play, not merely confirm it. If one only performed autopsies on cases in which there was “suspicion” of foul play, then many homicides would be missed. That is one of the reasons that most jurisdictions don’t make it a requirement that there be some suspicion of foul play, but instead that there is not clear evidence that it is *not* foul play — e.g. all unattended and unexplained deaths.
Moreover, if one requires suspicion of foul play, one then must ask *how much* suspicion and *whose* suspicion. Does it merely take a family member speculating that someone might have poisoned Aunt Jane? Does it take a bullet hole?
Finally, there are many cases that become important to the State in terms of legal consequences that are not “foul play” per se — but instead the result of unsafe conditions, poor product design, unsuspected conditions, etc. For instance, in my jurisdiction, we test for alcohol in almost all automobile accidents involving a fatality. Do you believe that religious objection should preclude surveillance of alcohol-related traffic deaths?
What about accidental deaths on the job? There’s no foul play, but in fact there are important issues of work safety that arise from deaths in the workplace, that have implications well beyond the individual death. How many people should die at a factory before the State decides to do a thorough investigation of workplace safety — including examining how these people died?
What about child death? How do you tell the difference between SIDS and blunt trauma to the head without looking at the head? Do you believe that one should look for child abuse only when there is “suspicion” of foul play? Or do you believe that a mother should be able to refuse such an examination — knowing that *most* cases of blunt trauma to the head would thus be missed?
What about a sudden, unexpected death due to unexplained or unknown disease? How many people need to die before there is sufficient State interest to determine the cause of a new epidemic?
What about deaths in custody? How many deaths in a prison must occur before possible abuse is investigated, including looking for anatomic evidence of abuse?
What about deaths of institutionalized people? How many deaths in a nursing home should occur before it is in the State’s interest to look for anatomic evidence of neglect?
What about deaths during medical procedures? How many deaths on the operating room table should occur before it is in the State’s interest to investigate why these deaths are occurring?
Frankly, I think it’s rather odd that folk would take the position that it’s valid for the State to say that it has enough of an interest to *kill* a man, but not enough of an interest to investigate the possibility of abuse, torture, or cruel and unusual punishment.
“The one thing this man has that can’t be taken away, durnst not be taken away, not even by an execution, is a right not to be treated like property.”
The man is not property. The body is quasi-property of the man. Upon death, it passes to the next of kin.
January 18, 2010, 10:55 am