Last month, the Alabama Department of Corrections agreed to stop fighting litigation that would allow Charles Burton Jr., a Muslim death row inmate, to be accompanied by his imam during his execution, a change from two years ago when a similar situation resulted in the lethal injection of an inmate without his Islamic spiritual adviser.

Arnold & Porter partners Anand Agneshwar and Paige Sharpe have worked with Burton since 2019 on his case to have his imam present in the execution chamber, akin to a practice that historically was allowed for Christian inmates in Alabama but not for those of other faiths. More recently, following challenges, the state had barred the practice for any religion.

"This is not about whether there should be a death penalty or not. But it's about, if you're going to have one in our society, there should be just simple humanity in how you treat the prisoners," Agneshwar told Law360 on Monday. "Perhaps there's no time in people's lives when they feel a need for spiritual comfort then when they're at the point of being executed."

Agneshwar and Sharpe have worked together on religious liberty cases for over 15 years, first representing Las Vegas high school valedictorian Brittany McComb over her graduation speech, which involved references to her Christian faith. School administrators cut her speech short, leading McComb to file a lawsuit that made its way to the Ninth Circuit, where it was dismissed.

The two attorneys also represented Gregory Holt, a Muslim inmate in Arkansas who was not allowed to grow out his beard in accord with his faith. The U.S. Supreme Court ruled in favor of Holt and forced Arkansas to do away with its rule.

The federal defenders office for the Middle District of Alabama reached out to Agneshwar and Sharpe in early 2019 to initially look into the case of Dominique Ray, who was told he couldn't have his imam present in the execution chamber because the imam was not a prison employee.

Alabama employed a Christian chaplain for years, according to Agneshwar, allowing for Christians to be accompanied by a spiritual adviser in the execution chamber and creating a dichotomy with death row inmates of other faiths.

"The fact that they required the Christian pastor who was on staff at the Department of Corrections, the fact that they required his presence for a couple of decades and then when someone of a different faith asked for the same type of spiritual comfort, the fact that he would be treated differently … I just felt like it was so unfair," Sharpe said.

In the matter of Ray, the legal team — which included the federal defenders office, the duo from Arnold & Porter and Stanford Law School's Religious Liberty Clinic — was able to get a stay of the execution from the Eleventh Circuit Court of Appeals, but the U.S. Supreme Court stepped in and allowed the lethal injection to proceed without an imam present on a vote of 5-4. The high court wrote that the case was not timely but noted that there was a constitutional issue at the heart of it.

Agneshwar and Sharpe soon after took on Burton's case as well as that of another Alabama inmate, Willie Smith. According to the attorneys, the Alabama Department of Corrections decided to do away with any spiritual advisers in the execution chamber in 2019. That meant Smith, who is a Christian, would not be allowed to have his pastor present with him during his lethal injection.

Because Smith's execution date was set, and Burton's still has not been, the case was fast-tracked in court. Again, in February, the Eleventh Circuit ruled on behalf of the inmate, but this time, the U.S. Supreme Court declined to overturn the decision and decided Smith should be allowed his spiritual adviser. He was executed in October.

"I think the Willie Smith case really created the domino effect," Agneshwar said.

There was an extra wrinkle, however, when it came to Burton's case. Instead of using lethal injection, the state plans to use a new method of execution, the gas nitrogen hypoxia. The state cited the new method as a means to deny the imam's presence in the execution chamber, according to the Arnold & Porter attorneys.

"They kept saying they don't know what the safety concerns are with that, so they need to develop a protocol and talk to their experts and stuff. But candidly, the judge kind of pushed them to make these decisions quickly and we kind of pushed them, and ultimately they got down to the point that they agreed that Mr. Burton could have his spiritual adviser present," Agneshwar said.

"My own view is that the Alabama Department of Corrections saw the writing on the wall in the way the Supreme Court ruled in the Smith case, and while it took some time, they ended up agreeing to provide Mr. Burton a spiritual adviser as well," he added.

In the stipulation of dismissal filed in the Middle District of Alabama on Nov. 29, the Department of Corrections said it "no longer contends that the presence of a spiritual advisor in the execution chamber during executions is a legitimate security concern that constitutes a compelling governmental interest under the Religious Land Use and Institutionalized Persons Act."

Burton was sentenced to death in 1992 following his participation in an attempted robbery of an Auto Zone store in Alabama. One of his accomplices shot and killed a customer, and while Burton was not inside the store at the time, he was put on death row under a law that makes "non-triggermen" liable for murder.

"For me, it's knowing that our client is going to have this comfort," Sharpe said of the resolution of the cases. "Mr. Smith, his execution did end up going forward earlier this year but with his spiritual adviser present, and knowing that we were able to do something to allow that to happen and to give him that comfort in his final moments is so meaningful."

--Editing by Jill Coffey.

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