Federal court rejects Alabama death row inmate’s appeal

A three-judge panel of the U.S. 11th Circuit Court of Appeals Wednesday rejected an appeal from Alabama death row inmate James Edward Barber, scheduled to be executed on Thursday. 

Barber, convicted for the 2001 murder of Dorothy Epps, argued the Alabama Department of Corrections’ string of botched executions last year meant that lethal injection could constitute cruel and unusual punishment, banned under the Eighth Amendment, and asked to be executed by nitrogen hypoxia. 

In a 2-1 decision, the appeals court ruled that Barber had not presented enough evidence to prove his claim, or that the district court had erred in denying his appeal. 

Writing for the majority, U.S. Circuit Judge Elizabeth Branch wrote that the U.S. Supreme Court had established that the Eighth Amendment “does not guarantee a prisoner a painless death, but forbids punishments that create a “superaddition of terror, pain or disgrace.”   

Barber argued that the three botched executions in 2022, all of which involved an hour or more of Corrections personnel jabbing the condemned with a needle, constituted “superadding pain.” Branch disagreed.

“Barber’s arguments suffer from a fatal flaw—they are 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,” she wrote. 

Last July, Alabama’s execution of Joe Nathan James lasted at least three hours. An autopsy showed he had jagged incisions and multiple puncture wounds.

In September, Alabama called off the execution of Alan Eugene Miller after repeatedly sticking him with needles over 90 minutes, while he was strapped to a gurney. In November, the state called off the execution of Kenneth Smith who was strapped to the gurney for three hours and was repeatedly struck. He stated in a later complaint that he “felt sharp and intense pain as the needle was repeatedly inserted into his collarbone.” 

Gov. Kay Ivey imposed a brief execution mortatorium after Smith’s execution to allow Corrections to conduct an internal review. Ivey lifted the review in February after Corrections Commissioner Jon Hamm wrote in a letter that he was “confident” that the department could resume executions. Hamm did not specify what if any changes the department had made to its procedures in the letter.

Barber argued that he would likely suffer the same fate because the state did not meaningfully change its execution protocol after Corrections concluded an internal review after the Smith case. The district court, however, citing an affidavit from a warden who said the personnel conducting executions had changed, ruled that the changes had “disrupted” the pattern of botched execution. The three-judge panel said the lower court did not err in that decision. 

Branch wrote in a footnote that there was no authority that Barber could cite saying that he was “entitled to any information concerning the ADOC’s internal investigation” to determine if Corrections had really addressed the execution issues. 

In a dissent, U.S. Circuit Judge Jill Pryor called Smith’s experience “horrifying” and found the internal review by Corrections insufficient.

“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,” Pryor wrote.

Pryor also criticized the district court for what she called the “surprise affidavit,” which Barber’s team did not know about prior to its introduction in court. 

“Hiring a new IV team does not ensure a more effective team without knowing facts about the old team for comparison,” she wrote.

Pryor also criticized Correction for not responding to questions posed by the plaintiffs. 

“Three botched executions in a row are three too many,” she wrote.” Each time, ADOC has insisted that the courts should trust it to get it right, only to fail again. Mr. Barber has raised a serious and substantial Eighth Amendment claim that the pattern will continue to repeat itself.”

Barber could appeal the court’s decision to the U.S. Supreme Court.