Alabama says spiritual advisor can be in death chamber for new nitrogen method of execution

Little else has been announced about how the method would be implemented

By Mike Cason
MONTGOMERY, Ala. — Alabama has not disclosed much information about its development of a nitrogen hypoxia method of execution, a never-used method approved by the Legislature in 2018 as an alternative to lethal injection.

But lawyers for the state made one revelation Monday, telling a federal court that it would be safe for an inmate’s spiritual advisor to be in the death chamber for a nitrogen execution.

The information came in a motion filed jointly by the Alabama attorney general’s office and lawyers for death row inmate Charles L. Burton Jr.

The Alabama Criminal Justice Center on Ripley Street in Montgomery.
The Alabama Criminal Justice Center on Ripley Street in Montgomery. (Mike Cason/

“To the best of Defendant’s (the state’s) knowledge, a spiritual advisor may be accommodated in the execution chamber during a nitrogen hypoxia execution without incurring serious risk to his or her safety,” the motion says. “Defendant does not anticipate this position changing.”

The motion was a joint request by the state and Burton’s lawyers to dismiss Burton’s lawsuit because the state has agreed to allow Burton’s Muslim spiritual advisor to be in the execution chamber.

Today, U.S. District Judge R. Austin Huffaker Jr., granted the request and dismissed the case.

The state has not set an execution date for Burton, who has been on death row since 1992 for a murder conviction in Talladega County.

Burton sued the state in April 2019, claiming it would be a violation of his religious rights for the Alabama Department of Corrections to bar his Muslim spiritual advisor from joining him in the death chamber for final prayers and statements of faith.

Burton’s lawsuit came about two months after the Alabama Department of Corrections refused to allow a spiritual advisor for another Muslim inmate, Domineque Hakim Marcelle Ray, in the death chamber for Ray’s execution. The ADOC’s longstanding policy was to allow only a state-employed Christian chaplain in the execution chamber.

That policy has changed since Ray’s execution. In February, the U.S. Supreme Court ruled that Alabama could not execute Willie B. Smith III without allowing his pastor in the death chamber.

In October, the state allowed Smith’s pastor in the chamber as it carried out Smith’s execution by lethal injection.

In the joint motion filed Monday in Burton’s case, the attorney general’s office acknowledged that Burton held a sincere belief in the importance of having a Muslim spiritual advisor in the execution chamber.

“Defendant (the state) further acknowledges that, based on recent Supreme Court decisions, Defendant no longer contends that the presence of a spiritual advisor in the execution chamber during executions is a legitimate security concern,” the motion said.

John Palombi, an attorney with the federal defenders office for the Middle District of Alabama, who represents Burton, said the agreement was proper.

“We are pleased that we were able to reach an agreement with the State of Alabama that allows death row inmates to engage with their faith at the time of their execution,” Palombi said in an email. “As was shown during Willie Smith’s execution, this can be done without difficulty.”

The agreement, signed by Burton’s spiritual advisor, specifies what prayers he will say in the chamber, what he will wear, and the texts he will bring in. The religious exercises are expected to take about five minutes, the agreement says.

The ADOC and the attorney general’s office have said little about the development of the nitrogen hypoxia execution methods. The AG’s office hired an industrial hygienist under contract to help with the project but would not disclose details.

Judge Huffaker asked the state for more information about the development of the nitrogen hypoxia method of execution in July. In response, the state gave the court a status report in August saying, “The ADOC has completed the initial physical build of the nitrogen hypoxia system. A safety expert has made a site visit to evaluate the system. As a result of the visit, the ADOC is considering certain additional health and safety measures.”

At that time, the state said it had not determined whether it would be safe for a spiritual advisor to be in the chamber for a nitrogen hypoxia execution. So Monday’s motion was an update on that information.

Monday’s motion said, “Defendant (the state) agrees to promptly notify Plaintiff when Defendant has finalized an execution protocol for executions by nitrogen hypoxia, and to provide Plaintiff with a public copy of this finalized protocol within five days of notification."

The Legislature approved the nitrogen hypoxia method when Alabama and other states were having difficulty obtaining the drugs for lethal injections and a time of growing litigation challenging the lethal injection method as cruel and unusual after some botched executions.

Asked about the uncertainty of the new nitrogen method today, Burton’s attorney Palombi said, “We are concerned about how the state plans on implementing execution by nitrogen hypoxia, however, we know to a certainty that, as evidenced by what has happened here in Alabama and what happened recently in Oklahoma, the present method of execution is torturous.”

Nitrogen hypoxia would result in death because the inmate would breathe only nitrogen and be deprived of oxygen. Alabama’s death row inmates were given a chance to opt for nitrogen hypoxia.

Oklahoma and Mississippi have also authorized executions by lethal injection but have not carried any out and have not announced protocols. asked the attorney general’s office and the ADOC today if they had any more information about how nitrogen executions will work. The AG’s office declined comment. The ADOC is checking to see what information is available, a spokesperson said.

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