(RNS) — Charles L. Burton Jr. doesn’t want to be alone when he dies.
The death row inmate hopes a federal court will make sure that does not happen.
Burton, who was sentenced in 1992 for participation in a murder during a robbery, filed suit last year after the state of Alabama denied a Muslim inmate from having an imam serve as a spiritual adviser at his execution, citing state policy that only allowed Christian clergy to serve as chaplains in the death chamber.
In response, the state barred all spiritual advisers, a move criticized by Spencer Hahn, one of Burton’s lawyers.
“They’re wrong legally, they’re wrong constitutionally. Morally they’re wrong,” Hahn said.
Burton’s lawsuit is expected to be heard in court in 2021.
The state’s rationale is that inmates now receive equal treatment because no one can be accompanied by a spiritual adviser in the death chamber. Prison officials did not return official requests or emails seeking elaboration. Lawyers and civil rights advocates object to the ban, arguing it hurts more inmates and fails to resolve Burton’s complaint.
Burton’s execution is currently on hold. He is one of about 50 inmates who chose to be executed by inhaling nitrogen gas, a method the state introduced in 2018 as an alternative to lethal injection. State officials have not worked out how to implement the nitrogen gas method of execution.
The preemptive move by Alabama to remove all spiritual advisers from the death chamber drew criticism from civil liberties’ advocates and Christian chaplains in a state known for its deeply Christian population. Alabama appears to be following a strategy set by the Texas prison system, which ordered a similar ban in response to a Buddhist inmate’s request.
Earlier this month, the U.S. Supreme Court halted the execution of Ruben Gutierrez, a Catholic inmate in Texas who was not allowed to have a chaplain in the death chamber with him. Gutierrez’s attorneys argued this violated his free exercise of religion.
The status of chaplains in the Alabama prison system varies. There are some Christian chaplains who are employees of the system. There are also other faith leaders, often imams, rabbis and religious leaders of non-Christian faiths, who are registered as volunteer spiritual advisers and can visit death row inmates and watch executions from a viewing room but cannot be in the chamber when prisoners die.
Under the new policy, Christian chaplains are also forbidden from accompanying an inmate in the death chamber.
“They don’t hire anyone who isn’t Christian,” said Ali Massoud, the government affairs coordinator for the Council on American-Islamic Relations Alabama. “That means that no other religious minorities on death row will have access to a spiritual adviser that they need.”
Burton, a practicing Muslim of 30 years, challenged the policy in a lawsuit filed last year in the Middle District Court of Alabama against Jefferson Dunn, the commissioner for the Department of Corrections. Burton’s lawyers argue that inmates are granted robust religious freedom protections.
They cite two laws in their court filings: the Religious Land Use and Institutionalized Persons Act and the Alabama Religious Freedom Amendment.
Hahn cited these laws in the past as an attorney representing Domineque Hakim Ray, who was denied an imam by his side during his execution in February 2019. The case was appealed to the U.S. Supreme Court, which found that Ray missed the deadline to file his request.
In response to the complaint by Burton on May 29, 2019, Dunn instituted a policy that no chaplain, Christian or otherwise, will be allowed in the execution chamber. Dunn also requested that Burton’s complaint be dismissed.
District Judge Emily C. Marks on Nov. 19 refused to dismiss Burton’s request, and a trial on the issue will likely be held no sooner than May 2021.
The Rev. Alan Cross, a Baptist pastor who opposes chaplain bans against any faith, believes this new policy puts Christian souls in jeopardy.
“The reason why Christians in Alabama should care about this is because it is about more than just the punishment of the man,” said Cross. “We should care about his eternal destiny. We should care about a soul.”
Cross said Christian theology teaches that inmates facing execution can ask for mercy and forgiveness, and God will hear their prayer until their very last breath. A chaplain can help spiritually guide them through this profound moment.
“If we are going to execute people, then we should at least offer them the benefit of their faith to have a pastor or imam to be with them to contemplate these eternal things at the very end,” said Cross.
Until a court rules on Burton’s case, the ban on chaplains in the death chamber remains in place. And in at least one case, an imam was unable to attend an execution as a witness.
On March 5, 2020, Imam Yusef Maisonet was told by Holman prison officials to wait at a hotel and expect to be called to the execution viewing room. Maisonet was a spiritual adviser to Nathaniel Woods, whose execution was set for that night.
Maisonet said he never got the call from prison employees and left to return home after correctly assuming Woods was granted a stay of execution.
After the stay by the U.S. Supreme Court was lifted, Woods was executed by lethal injection without an attempt by prison authorities to bring back Maisonet.
Wood’s lawyer Lauren Faraino said this shows a lack of concern for religious freedom.
“They’ve made a mockery of the constitutional rights to religious freedom, freedom from discrimination, and yet they don’t have to claim responsibility because they can say well, Imam Yusef chose to leave,” Faraino said.