- The Washington Times - Thursday, February 28, 2019

Alabama’s prisons are reviewing their policy of having only a Protestant Christian chaplain on call to accompany the condemned into the execution chamber, after a Muslim prisoner was put to death this month without being able to have an imam present.

The U.S. Supreme Court allowed the execution to go forward, with the majority saying Domineque Ray raised his objections too late. But a stiff dissent from some justices saying the state was violating death row inmates’ freedom of religion prompted a rethink at the Alabama Department of Corrections.

While one option is to allow clerics of other faiths into the execution chamber, the state also is reportedly considering having no religious comfort available — which legal scholars say would raise its own constitutional objections.

No decisions have been made, but lawyers said Alabama likely will have to make some change from its Christian-only practice.

“Imagine the outcry and the voices in Congress if there were some state statute that said we have a Buddhist or we have a Muslim who is our chief prison chaplain and he is the only one who is authorized to be in the chamber,” said Robert Tuttle, a law professor at George Washington University.

Ray, who was sentenced to death in 1999 after being convicted of rape and murder of a 15-year-old girl, became a practicing Muslim in 2006.

He filed a number of appeals throughout the past two decades, but only in January challenged the prison’s policy, saying it violated his religious rights.

Alabama officials said 45 inmates were executed while Ray sat on death row, and they said it was unlikely he learned only in January that people who aren’t employed by the prison are not permitted within the execution chamber. That policy excluded Ray’s imam.

The 11th Circuit Court of Appeals ordered a stay of execution to hear the arguments, but the 5-4 majority on the Supreme Court overruled that, agreeing with Alabama that the religious issue came too late.

Justice Elena Kagan wrote a scathing dissent saying the majority was short-circuiting Ray’s fundamental freedoms.

“Ray has put forward a powerful claim that his religious rights will be violated at the moment the state puts him to death,” she wrote.

The Alabama Department of Corrections said its protocol of allowing only its prison employee, Chris Summers, a Protestant chaplain, into the execution chamber was necessary for security reasons.

The chaplain will kneel and pray with the inmate if he or she wishes, or stand silently along the wall if no prayer is requested. Other spiritual advisers of different faiths are permitted to observe the execution from a viewing room with two-way glass.

The policy was adjusted for Ray, according to local reports, with the chaplain not in the chamber for his Feb. 7 execution, hours after the Supreme Court decision. Ray’s imam observed the execution from an adjoining viewing room.

If Alabama changes its policy to not allowing any religious leader — Christian or not — into the chamber, that could face free exercise challenges in court, according to legal experts.

They said prisoners could mount lawsuits citing the Religious Land Use and Institutionalized Persons Act, which protects inmates’ free exercise of religion while behind bars.

“They are going to have to train other people given their history,” said Micah Schwartzman, a law professor at the University of Virginia. “I think it will be hard to sustain shutting it all down.”

It’s not clear how many of the 31 states that have the death penalty have restrictive religious policies for executions, though Deacon John D. Tomandl, president of the American Correctional Chaplains Association, said Alabama’s policy is in the minority.

He said other states typically permit various spiritual leaders to accompany the prisoners.

“If you look at the Federal Bureau of Prisons … the bigger states with large prison populations … you see agencies determined to meet the current regulations and spirit of the law,” he said. But analysts said states that do have restrictive rules should be prepared to see them challenged.

“Now that this case has raised so much attention, it’s almost inevitable,” said Richard T. Foltin, a senior scholar at the Religious Freedom Center.

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