James Edward Barber executed for 2001 murder of Dorothy Epps

The state of Alabama Thursday executed James Edward Barber Friday morning for the 2001 murder of Dorothy Epps of Harvest. 

The execution, the first completed by DOC in nearly a year and after a string of botched attempts, began at 1:34 a.m., about an hour after the U.S. Supreme Court rejected Barber’s final appeal. 

Lee Hedgepeth, a freelance journalist who observed the execution said Barber showed some labored breathing but no significant movements. At one point, Barber’s attorney placed her hand on the glass and one of the corrections officers told the attorney to remove it.

The state didn’t provide a transcript of Barber’s last words, but Hedgepeth said that part of Barber’s statement included, “I forgive Gov. (Kay) Ivey and the people in this room for what they are about to do.”

The curtain opened around 1:30am and closed at 1:47 a.m. The Attorney General’s office said in a statement that Barber was pronounced dead at 1:56 a.m.

Alabama Department of Corrections Commissioner John Hamm said the state attempted three sticks in 6 minutes. There were two IV lines established, meaning there was one failed attempt and two successful ones.

Corrections said members of Epps’ family were present to witness the execution. They did not make a public statement.

Barber and his attorneys unsuccessfully argued that the botched executions meant that he would be subjected to cruel and unusual punishment.  In July of last year, Joe Nathan James was strapped to a gurney for three hours as DOC personnel tried to establish an IV line.  The Atlantic reported James’ autopsy revealed jagged incisions and multiple puncture wounds on his body.

In September, DOC called off the execution of Alan Miller after staff could not establish an IV line. Miller later said he was repeatedly struck with needles for 90 minutes and the state’s window for executing him expired. 

In November, Kenneth Smith, who was strapped to a gurney for almost two hours as staff failed to establish an IV line required to continue with the execution. Smith’s execution was also called off after time expired on the warrant to have him be put to death.

The U.S. 11th Circuit Court of Appeals rejected Barber’s arguments on Wednesday. As is customary, the majority on the U.S. Supreme Court did not share their reasons for allowing the execution to proceed. 

But Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, wrote that Alabama’s string of failures meant that it could not be trusted to carry out an execution appropriately. 

“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 had sought to be executed by nitrogen hypoxia. Hamm said that execution by nitrogen hypoxia would be available soon, perhaps as soon as a couple of months.

There were no statements made by the victim’s family members, according to Hamm.

After Smith’s failed execution, Ivey imposed a moratorium on the death penalty until a review was completed investigating the reasons for the problems the state had during the botched attempts. Clergy and attorneys praised Ivey’s decision but were critical of allowing Corrections to investigate and review the problems with its own procedures for executing people.

In February, Ivey lifted the moratorium after Corrections said it had completed its internal review and was ready to resume executions. The department did not say at the time what the underlying problems were and how they had been addressed. 

Shortly afterward, Alabama Attorney General Steve Marshall then sought a warrant to execute Barber.

Barber and his attorneys argued that the state’s repeated failures to execute people meant an attempt to execute him by lethal injection would violate his Eighth Amendment protections against cruel and unusual punishment. 

Attorneys for the Alabama attorney general’s office argued that Barber had waited too late to make his argument, and cited an affidavit from a warden that said that personnel who had not been involved with the botched executions would set his IV lines.

A district court ruled against him, claiming he did not provide enough evidence that he would suffer from lethal injection and that the new personnel had “disrupted” the chain of botched executions. 

A three-judge panel of the 11th Circuit Wednesday upheld the lower court ruling. U.S. Circuit Judge Elizabeth Branch wrote that Barber’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.”

U.S. Circuit Judge Jill Pryor dissented, saying Corrections had provided no evidence that it had improved the procedures.  

“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.”

In their U.S. Supreme Court appeal, Barber’s attorneys wrote that under Branch’s reasoning, 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.”

The state, in its response to the writ, wrote that Barber’s claims that he would experience severe pain with the lethal injection protocol is speculative.

The dissenting opinion from the justices of the Supreme Court reiterated many of points that Pryor made when in her dissenting opinion.

“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,” Sotomayor wrote.

The dissenting opinion also leveled criticism in the 11th Circuit Court’s decision.

“The Eleventh Circuit’s categorical rule ignores crucial Eighth Amendment questions,” Sotomayor wrote. “How much pain or psychological torment amounts to serious harm? How long is too long to set an IV line? How many punctures with a needle, where, and how deeply, may cause superadded pain? These questions require a factual foundation, developed with the assistance of medical experts.”