U.S. Supreme Court denies Alabama death row inmate’s appeal

The U.S. Supreme Court early Friday morning allowed the scheduled execution of Alabama death row inmate James Edward Barber to go forward, rejecting his arguments that recent botched executions by the Department of Corrections make lethal injection a form of cruel and unusual punishment.

The majority in the 6-3 decision did not explain their reasoning. In a dissent, Justice Sonia Sotomayor, joined by justices Elena Kagan and Kentaji Brown Jackson, said Alabama had not explained what went wrong in the previous executions.

“Alabama plans to kill him by lethal injection in a matter of hours, without ever allowing him discovery into what went wrong in the three prior executions and whether the State has fixed those problems,” Sotomayor wrote. “The Eighth Amendment demands more than the State’s word that this time will be different.”

Barber, convicted of the 2001 murder of Dorothy Epps, could be executed at any time before 6 a.m. Friday. A three-judge panel of the U.S. 11th Circuit Court of Appeals Wednesday rejected his appeal.

Alabama conducted three botched executions between July and November of last year. In all three, inmates or attorneys accused DOC of repeatedly stabbing the condemned with needles in order to establish an IV line, causing considerable pain.

Alabama executed Joe Nathan James in July 2022. James was strapped to a gurney for three hours. A later autopsy report said his body showed jagged incisions and multiple puncture wounds.

In September, DOC called off the execution of Allan Eugene Miller after sticking him with needles for more than 90 minutes.  The execution of Kenneth Smith, scheduled in November, was also called off after he was repeatedly stuck with needles.

Barber’s attorneys argued in their appeal that the methods were “beyond Eighth Amendment limits” on cruel and unusual punishment.

“Respondents will impose needless pain over numerous hours, and extend the duration of the execution beyond tolerable levels, imposing physical and emotional anguish,” the attorneys wrote. “To carry out an execution over the course of numerous hours while puncturing the inmate’s body countless times and with increasing pain is both ‘cruel’ and most definitely ‘unusual.’”

The inmate said he would prefer to be executed by nitrogen hypoxia, an as-yet unused method of execution by the state, saying it would be less painful.

Barber’s attorneys argued that a single botched attempt may not amount to an Eighth Amendment violation, but that Alabama’s repeated failures showed a pattern that amounted to cruel and unusual punishment.

U.S. Circuit Judge Elizabeth Branch, part of the majority on the three-judge panel that denied Barber’s appeal on Wednesday, wrote that the inmate’s argument was “premised on the assumption that protracted efforts to obtain IV access (i.e., ‘repeatedly pricking him with a needle’) would give rise to an unconstitutional level of pain.”

Barber’s attorneys wrote that this meant there could never be an Eighth Amendment violation “regardless of how many times the inmate is punctured, regardless of how long his death lingers, and regardless of the emotional anguish he is forced to endure.”

“That is not the law, and it never has been,” they wrote.

After Smith’s execution was called off, Gov. Kay Ivey imposed a brief moratorium to allow DOC to review Alabama’s execution methods. The moratorium was lifted after Corrections said it had completed the review, though the department did not say at the time what had changed in the state’s execution process.

The Alabama attorney general’s office wrote in reply to Barber’s filing on Thursday that the inmate could not know if the execution method would be cruel and unusual punishment. The office also wrote that upholding the appeal would effectively ban execution by lethal injection. The state also wrote that it has addressed Barber’s claim — by changing the personnel who had trouble securing in IV line during the previous attempts.

“As the Eleventh Circuit explained, “evidence presented during the evidentiary hearing established that ‘[n]one of the members of the current IV [T]eam were involved in the previous three execution attempts,’” the state argued in its response.

That finding came from an affidavit filed by DOC in June from a warden. The majority on the three- judge panel upheld a lower court ruling that the change in personnel showed that DOC had “disrupted” the pattern of botched executions. U.S. Circuit Judge Jill Pryor, who dissented from the panel, sharply criticized the reasoning.

“After a three-month ‘review’ of its procedures— conducted entirely internally, entirely outside the scope of any court’s or the public’s scrutiny, and without saying what went wrong or what it fixed as a result—ADOC swears it is ready to try again, with Mr. Barber as its guinea pig,” she wrote in a dissent.

Sotomayor wrote that Barber had shown that he could prevail and echoed Pryor’s “guinea pig” language.

“Without any evidence about what went wrong and only the State’s word that it has been fixed, Barber’s allegations that he will experience the same ‘needless suffering’ as James, Miller, and Smith are more than justified,” she wrote.