Death Watch: Execution Stayed Until TDCJ Makes New Spiritual Adviser Rules

It often takes years for Texas prison officials to change their policies and procedures when ordered to do so by the courts. Such is the case in the ongoing dispute over allowing spiritual advisers into the death chamber to comfort the condemned. The U.S. Supreme Court forced the Texas Department of Criminal Justice to let spiritual advisers pray aloud and lay hands on inmates in the chamber nearly a year ago, but TDCJ still has not changed its written policy to define what spiritual advisers may and may not do. Last week in Houston, U.S. Senior District Judge Kenneth Hoyt put a hold on the Nov. 16 execution of Stephen Barbee, convicted of killing Lisa Underwood and her 7-year-old son in 2005, until TDCJ spells out its new rules.

The execution could still proceed if TDCJ gets its act together, but Barbee has also raised a separate issue. Because he suffers from severe osteoarthritis and can't fully extend his arms, Barbee wants officials to guarantee they will administer the lethal injection with his arms bent; TDCJ has refused for over a year to say whether they will accommodate him. So Barbee is appealing the execution on this ground, saying that attempting to flatten his arms would amount to torture, violating the Eighth Amendment's prohibition against cruel and unusual punishment.

Barbee's loss of mobility in his arms is covered in meticulous detail in a complaint filed by his attorney Richard Ellis on Oct. 25. Records show that in 2006 Barbee couldn't raise his arms without pain and numbness. By 2009, he could not fully extend his right arm. By 2013, he could not touch his face with either hand.

As his body degenerated, Barbee pleaded with prison authorities for treatment. "If [TDCJ] continues to delay my medical care, I won't be able to take care of myself," he wrote in a 2010 grievance. "My arms will be shot! I'm asking for help in this!" Rather than expedite care, TDCJ eventually stopped taking him to medical appointments because it was no longer possible to put him in handcuffs.

Today, Barbee is in constant pain, can no longer clean himself, and must be transported in a wheelchair. He met with the warden of death row last year, who photographed him as he tried to straighten his arms. Barbee told the warden that the only way guards would be able to straighten his arms to administer a lethal injection would be to break them. The warden laughed and said, "That ain't gonna happen." That's the dynamic – the use of personal assurances by TDCJ officials rather than legally enforceable guarantees – that caused Hoyt to issue the temporary injunction that has halted Barbee's execution thus far.