By Stephen Cooper
Over 60 years ago, Supreme Court Chief Justice Earl Warren wrote that “[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards.”
Turning this concept – at the root of how we define “cruel and unusual” punishment in this country – on its head, this coming Thursday the State of Alabama will execute Domineque Hakim Marcelle Ray, and, though all Christian inmates executed in Alabama are afforded a spiritual advisor, one permitted to have physical contact and to minister to them during their final moments, Mr. Ray will not be granted this same measure of human dignity. Why? For one reason, and one reason only: he’s Muslim.
Arguing precisely this point in federal court last week, public defender Spencer Hahn urged United States District Judge W. Keith Watkins, to order, over Alabama’s religiously bigoted objections, that Mr. Ray be allowed to have his own spiritual advisor in the execution chamber – a Muslim imam, one already approved by Alabama’s Department of Corrections (ADOC) for contact visits with Ray; Hahn urged: “Why does Mr. Ray not get the same benefit as a Christian, non-Catholic condemned inmate would? If Mr. Ray were a standard, everyday Protestant Lutheran Christian, he would have a spiritual advisor there who could touch his hand and pray with him in his final moments. But because he happens to be a Muslim – and who knows if the next person is going to be a Catholic or Jewish or a Buddhist – they don’t get that benefit? We would dispute that there is a compelling governmental interest in allowing one type of religious leader into an area and not another.”
But, in a dog-whistle response, ignoring, as I’ve written elsewhere, the state’s “odious tradition of ducking and dodging death penalty accountability” for its manifold patently botched executions – executions that have devolved into excruciating medieval torture sessions because of the medically untrained personnel and unsuitable chemicals Alabama insists on using, and not remotely because of the threatened presence of a non-Christian spiritual advisor – Assistant Attorney General Richard Anderson argued: “[T]here is a very well-established interest in maintaining prison security and the safety and orderliness of prison operations. That is – that’s the main backbone of what our interest is in regulating who goes in and out of, particularly, the execution chamber itself.”
Unsubtly and unscrupulously, Anderson maintained that, in Alabama, only a Christian spiritual advisor can be trusted to maintain proper decorum and discipline during an execution, because “[y]ou know, whether overtly or inadvertently or intentionally, things could go wrong. That is the reason why we restrict access to that room.”
But what about Judge Watkins, you ask? Surely a federal judge would see through this farcical argument, one that makes an end-run around the Constitution while freely, offensively, and unjustifiably casting aspersions on any spiritual advisor not Christian?
Nope. Instead, Watkins, who once attacked the entire medical profession in a judicial opinion over the diminishing access to lethal injection drugs, ate up Anderson’s argument as if it was the most delectable piece of apple pie, served hot and piping fresh on the Fourth of July.
In Furman v. Georgia, the 1972 case in which the Supreme Court briefly struck down the death penalty in the United States, Justice William Brennan wrote in his concurrence: “Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the person’s humanity”; Brennan complained that the “evolution of [the death penalty] evidences not that it is an inevitable part of the American scene, but that it has proved progressively more troublesome to the national conscience.”
If this is true, it is precisely in such a situation as this one involving Domineque Ray’s execution, that conscientious, justice-loving Americans, especially Alabamians, must speak up! On social media, by telephone, by post, by email, and in the street outside the offices of government, now is the time to make your objections to this pending abomination heard.
Following Justice Brennan’s noble example, we must object to religious bigotry and a lethal injection protocol that treats “members of the human race as nonhumans, as objects to be toyed with and discarded.” The time to be on record against a process disregarding “that even the vilest criminal remains a human being possessed of common human dignity” is now.
Stephen Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, California. Follow him on Twitter @SteveCooperEsq