On the day after Alabama Gov. Kay Ivey commuted his death sentence, halting his execution two days before he was supposed to die, Charles “Sonny” Burton sat in his wheelchair in a visiting room at Holman Correctional Facility in Atmore, Ala., drinking a Coke and eating a Reese’s peanut butter cup.
He could not stop smiling.
“I’m feeling wonderful,” Burton told me.
Burton, 75, wore white sneakers and a brace on his right hand, his tan quilted jacket and slacks fitting loosely over his thin frame. A tan helmet, given to him by the prison to protect from his occasional falls, sat on the table next to an array of photos taken with family earlier that day, along with a bag of quarters for the vending machines.
Burton identified the people in one of the photos for me. Several were still in the visiting room: his sister Eddie Mae Ellison, his son Charles Burton III, and his grandson Charles Burton IV. No sooner had one group of relatives left the visiting room than another showed up — a rolling family reunion.
Burton had been sitting in that same visiting room with his lawyers 24 hours earlier, on Tuesday, March 10, when his longtime paralegal Nancy Palombi got a phone call in Montgomery, 120 miles away. While the rest of the legal team was at the prison without access to their cellphones, Palombi had stayed behind to field any communications from the U.S. Supreme Court, which had just received their final filings aimed at stopping Burton’s execution.
Instead, she got a call from a reporter she knew. The reporter was screaming, “Have you heard?” The governor’s office had just sent out a press release with the subject line, “Update from Governor Kay Ivey: Charles L. Burton.” And that’s how Palombi learned that her client of 20 years would not be executed.
“I was the first member of the team to find out,” Palombi told me that morning, her voice still trembling with a mix of shock, joy, and relief.
Palombi called the prison and spoke to the warden’s secretary, who entered the visitation room with a smile on her face. She told Burton’s lead attorney, Assistant Federal Defender Matt Schulz, that he should call his paralegal right away. “And I’m like, ‘Oh my god, it happened,’” Schulz said. “But I still didn’t want to let myself believe it, because I didn’t know yet.”
Schulz rushed to his car, drove out of range from Holman’s cellphone blockers, and called Palombi. He then sped back.
Describing the scene the next day, Burton turned and pointed toward the hallway that runs along the perimeter of the visiting room. That’s where prison staff celebrated as the news spread on death row. Nurses and officers waved and gave him thumbs ups through the horizontal window slats. “Guards were saying, ‘Sonny got clemency! Sonny got clemency!’” Burton said.
A day later, everyone was still a bit shellshocked. Burton’s son, who had flown in from New York, got the news while loading up his rental car for the drive to Atmore. Burton’s sister was at the doctor’s office in Montgomery, where she saw a local news alert. She ran outside and dropped to her knees. “And then the tears just flowed,” she said.
For decades, the visiting room had been the site of agonizing goodbyes between the condemned and their loved ones in the hours before an execution. Now it was home to warm hugs and tranquil smiles, no one’s bigger than Burton’s. He invoked the famed blues harmonica player Snooky Pryor: “I’m too cool to move.”
Burton’s commutation was historic: the third time in the modern history of Alabama’s death penalty that a person facing execution received clemency by the governor. Ivey, a staunch Republican, has presided over 25 executions since she took office in 2017. Although she commuted the sentence of Burton’s neighbor, Rocky Myers, last year due to serious doubts over his guilt, few were optimistic that she would exercise such mercy again.
Burton would have been the ninth person executed using nitrogen gas in Alabama in just over two years. The method was adopted following complications carrying out lethal injection, a wider trend that has reshaped the landscape of executions across the country. The state’s last execution prompted a forceful dissent from Supreme Court Justice Sonia Sotomayor, who described the psychological torture in visceral detail. “You want to breathe; you have to breathe,” she wrote. “But you are strapped to a gurney with a mask on your face pumping your lungs with nitrogen gas. Your mind knows that the gas will kill you. But your body keeps telling you to breathe.”
Burton’s commutation also came as a searing documentary about the state prison system, “The Alabama Solution,” was in the race to win an Oscar. The film, which was produced using footage from contraband cellphones, forced politicians to acknowledge the deadly conditions and inhumane punishments inflicted on people incarcerated in their state. On the day I visited Burton, lawmakers met in Montgomery to discuss legislation to impose oversight on Alabama’s prisons.
It was this kind of public pressure that undoubtedly saved Burton’s life. “I would have 100 percent died without it,” Burton told me. In Montgomery, activists held vigils every Monday for weeks in front of the governor’s mansion, while downtown businesses posted flyers about Burton’s case in their front windows. On the eve of Ivey’s decision, two of Burton’s daughters led a march to the state Capitol to deliver petitions to her office.
The campaign for clemency was launched by Burton’s legal team, who believed they had nothing to lose. They highlighted Burton’s remorse, his advanced age and poor health, and, above all, his lack of culpability for the murder that sent him to death row. “This is one of those cases that shocks people,” Schulz said in a clemency film produced last year. “And it shocks people in a totally different way than most death penalty cases.”
Burton was 40 years old when he led a group of younger men in an armed robbery at an AutoZone in Talladega, Alabama. A 34-year-old father and military veteran named Doug Battle walked in as the crime was underway — and one of the young men fatally shot him in the back.
At first, Burton denied any role in either the robbery or the shooting. His apparent lack of remorse helped convince jurors at his 1992 trial that he should be punished as severely as the man who actually shot Battle, a 20-year-old named Derrick DeBruce, who had already been sent to death row. After a four-day trial, Burton, too, was found guilty of capital murder and sentenced to die.
But a federal court eventually threw out DeBruce’s death sentence, finding that his lawyer failed to effectively represent him during the punishment phase of his trial. The Alabama attorney general’s office initially appealed the decision, contending that it would be “arguably unjust” to allow Burton to be executed for his co-defendant’s actions. But in 2015, the state agreed to reduce DeBruce’s punishment to life without parole. He died five years later.
“What is the execution of Mr. Burton supposed to accomplish or solve?”
The notion that Burton should now pay with his life for another man’s crime spurred outrage among people in Alabama and beyond. The campaign to save Burton was bolstered by six of the eight living jurors who voted to send him to death row, as well as by Battle’s daughter, Tori Battle, who was outspoken in her opposition to the execution. “What is the execution of Mr. Burton supposed to accomplish or solve?” she asked Ivey in a letter that was submitted as part of Burton’s 88-page clemency petition. “Is it for my father? For me? To deter crime? I honestly do not understand.”
The petition argued, first and foremost, that Burton never killed anyone. “He did not pull the trigger that killed Douglas Battle,” his lawyers wrote. In fact, he didn’t even witness the murder. “Mr. Burton was already outside of the AutoZone building where the shooting took place.” Although Alabama’s felony murder statute allows defendants to be held responsible for the actions of others, Burton was only supposed to be eligible for capital murder if he intended to take somebody’s life — and there was nothing to prove that this was the case.
The state’s star witness against Burton was a teenager named LuJuan McCants who agreed to testify in order to avoid the death penalty. He said that Burton had gathered the group with the intention of committing a robbery — and if something went wrong, “he said let him take care of it.” According to prosecutors, this directive proved that Burton intended to kill anyone who might stand in the way of the robbery. But even this weak evidence was undermined by McCants’s own testimony, as well as by an interrogation video discovered by Burton’s lawyers years after the trial. It showed McCants repeatedly telling investigators that Burton had not wanted anyone to get hurt — and that he’d been upset upon learning that DeBruce shot Battle.
Some of the jurors who spoke out against the execution said they were haunted by their decision. “I have questioned whether death is an appropriate punishment,” one woman wrote in a letter submitted with the clemency petition. “I have often thought about Mr. Burton’s mother, who was no doubt devastated by the sentence.”
But for most, it came down to the obvious unfairness of executing Burton for DeBruce’s crime. “Had I known the shooter would later be taken off death row,” one juror wrote, “I would not have voted for the death sentence.” Another juror wrote that Burton may have been the ringleader, “but if Charles Manson can get a life sentence for leading his group to kill many people, it is fair for Mr. Burton to serve life without parole.”
Like most people living on death row, Burton bears no resemblance to Charles Manson — or to the people Americans picture when they hear the term “worst of the worst.” His early life had many of the familiar hallmarks of those who are put to death in the United States: poverty, racism, childhood abuse, and trauma. By the time Alabama came close to executing him, he’d long since apologized for his actions and was in frequent pain from rheumatoid arthritis, unable to walk on his own.
But he was also lucky, he told me. If there was anything that sustained him during his years at Holman, it was a strong family structure, which many of his neighbors lack. Indeed, Burton’s clemency petition was filled with letters from relatives, pen pals, and advocates who described Burton as a positive and nurturing presence in their lives.
I was supposed to attend Burton’s execution — not as a media witness, but as one of the people placed on his personal list. Burton did not wish for his family to be subjected to his death, and his legal team decided that, should the killing move forward, they wanted the world to know what Alabama had done. They invited me and two other journalists to join them in the witness room.
One of them, Lee Hedgepeth, had already witnessed seven executions in Alabama, including three by nitrogen gas. The last one had been the longest to date, lasting 40 minutes. Schulz had seen two of his clients killed with nitrogen. Their accounts were harrowing: Terror and panic was visible on the faces of the condemned, who gasped and thrashed on the gurney. As Burton’s execution date neared, Schulz wondered how it would compare. Would his elderly client suffer more or less due to his age and poor health? Could his more shallow breathing cause the execution to last longer? Or would the fact that he does not have as much oxygen in his lungs to begin with mean it would be shorter?
What was certain was that executing Burton would have been a horrifying spectacle. Guards would have had to lift him onto the gurney, adjusting the thick black straps to fit more tightly over his withered body, and putting a mask over his face. Witnesses would then have watched as Alabama suffocated an elderly man, who killed no one, in the name of justice.
Instead, Burton is now poised to live out the rest of his days behind bars. On the day after our visit, he was moved out of the prison where he spent more than three decades and driven up to Kilby Correctional Facility outside Montgomery, where newly incarcerated people are housed before being transferred to their designated prisons. The move is sure to be a shock to the system for a man who has hardly begun to process the trauma of his near-execution and who has spent much of the past 10 years between his cell and the prison infirmary. After age 65, Burton told me, he slowed down. “I haven’t been outside in eight years,” he said.
In a less punitive system, it would be obvious that Burton should go home to spend the rest of his life with his family. As he said, “I ain’t got much longer to live.” His relatives harbor some hope that he may some day be eligible for medical release. But for now, according to Schulz, Burton was in good spirits when they spoke on the phone from his new location. “He said he knew many of the nurses there, and that they all were greeting, and treating, him warmly,” he said.
“And he’s alive,” Schulz added. On Thursday at 6 p.m., the hour he had been scheduled to die, Burton planned to eat ice cream at the same time as his attorneys and savor the feeling of gratitude. “God has given me a second chance,” Burton told me. This, he believed, was God’s work. “He put the right people in my path.”
