WASHINGTON (CN) — The Supreme Court declined to block the execution of James Edward Barber in an early morning order on Friday, allowing Alabama to carry out its first execution since a pause on capital punishment in the state.
Stemming from the 11th Circuit, the emergency application to block Barber’s execution was submitted to Justice Clarence Thomas on Thursday afternoon. Although the execution was scheduled for 7 p.m. that night, the court’s response did not come until 1 a.m. Friday morning.
Barber, 64, was pronounced dead at 1:56 a.m. after receiving a lethal injection at a south Alabama prison. His execution was the state’s first in months. Alabama Governor Kay Ivey put the practice on hold in November 2022 after three botched executions.
Three justices dissented from the ruling, with Justice Sonia Sotomayor saying it gave the state permission to use inmates like guinea pigs.
“The Court should not allow Alabama to test the efficacy of its internal review by using Barber as its ‘guinea pig,’” the Obama appointee wrote in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson. “It should grant Barber’s application for a stay of his execution.”
Sotomayor detailed the recent problems with Alabama’s lethal injection procedures and said executions violated the Constitution if they cause a risk of serious harm.
“A method of execution violates the Eighth Amendment when it causes ‘a ‘substantial risk of serious harm,’ an objectively intolerable risk of harm that prevents prison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment,’” Sotomayor wrote. “For instance, ‘a series of abortive attempts [at execution]’ unlike an ‘innocent misadventure,’ would demonstrate an ‘objectively intolerable risk of harm’ that officials may not ignore.’”
The dissenting justices would have paused Barber’s execution until Alabama resolved what went wrong in its three previous execution attempts. Without the pause, Sotomayor said the court was allowing the state to experiment on inmates.
“This Court’s decision denying Barber’s request for a stay allows Alabama to experiment again with a human life,” Sotomayor wrote. “I respectfully dissent.”
The justices in the majority did not provide an explanation for their ruling.
Barber sat on Alabama’s death row for the 2001 murder of Dorothy Epps. He was found guilty of capital murder and sentenced to death in 2003 for his crime. Unlike most emergency applications the court receives in death penalty cases, Barber was not contesting his crime or sentence. Instead, he claimed the state’s troubled history with carrying out his punishment should have been stopped.
“Mr. Barber seeks relief from this Court to ensure that Alabama does not needlessly subject him to cruel and unusual punishment in violation of the Eighth Amendment,” Robert Hochman, an attorney with Sidley Austin representing Barber, wrote in his application.
Alabama uses lethal injection to carry out death sentences. To do this, the IV team must establish IV access in two places on the individual. In its three most recent execution attempts, this has been a problematic step.
Last year, Alabama’s execution of Joe Nathan James Jr. lasted about three hours — the longest in history — because of difficulties establishing an IV line. James was unable to say his final words as he appeared unconscious to witnesses during his execution. An autopsy found punctures on his elbow joints, right foot, forearm, both wrists and both hands.
A few months later, Alabama attempted to execute Alan Miller. Corrections officials failed, however, to establish IV access. According to Miller, he was repeatedly punctured for 90 minutes while the IV team worked. Miller described the pain during the procedure as being electrocuted.
Kenneth Smith underwent Alabama’s next attempted execution. Smith was strapped to the execution gurney for four hours — two of which the team spent puncturing him with needles — before the state called off his execution. Smith claims the team repeatedly jabbed a large needle into his collarbone area, causing him sharp pain as workers attempted to start a central line. According to the commissioner, the execution team ran out of time to complete Smith’s execution.
After Smith’s botched execution, the state paused lethal injections to conduct a review of the procedure.
“Alabama’s past three execution proceedings imposed needless physical and emotional suffering on inmates to such an extent that Alabama paused its lethal injection executions and undertook an internal review of its procedures,” Hochman wrote. “Shockingly, however, that review resulted in no substantive changes to Alabama’s procedures or to the qualifications of those carrying out lethal injection executions.”
In May, the Supreme Court sided with Smith in his petition to use an alternative method of execution: nitrogen hypoxia. This execution method was approved by lawmakers in 2018 and deprives inmates of oxygen by forcing them to breathe only nitrogen.
Barber asked the Supreme Court to allow him to make the same choice.
“Mr. Barber’s request is narrow,” Hochman wrote. “He asks this Court for nothing more than to require Alabama to use the readily available alternative means of executing him that does not create a substantial risk of needless physical pain and emotional suffering. Alternatively, Alabama could make substantive changes to its lethal injection procedures to address the undeniable risk of needless suffering that the prior three attempts have revealed.”
Barber filed a complaint in May claiming Alabama’s lethal injection protocol violated his Eighth Amendment rights against cruel and unusual punishment. The district court denied his request for a temporary pause on his execution. The 11th Circuit then affirmed in a 2-1 decision.
Alabama explains away the state’s lethal injection issues.
“Due to a confluence of events — including health issues specific to the individual inmates and last-minute litigation brought by the inmates that dramatically shortened the window for ADOC officials to conduct the executions — two of the executions had to be called off when the team could not gain intravenous access,” Richard Anderson, Alabama’s assistant attorney general, wrote in the state’s reply brief. “Barber alleges the same thing will happen to him, that he will therefore face multiple needle punctures, and that those needle punctures constitute cruel and unusual punishment.”
The state told the Supreme Court to deny Barber’s petition because attempts to obtain IV access do not amount to cruel and unusual punishment.
“Obtaining intravenous access is a common procedure that is unquestionably necessary to the state’s interest in carrying out lawful executions,” Anderson wrote. “Barber would have this court grant certiorari on a claim that an IV team who had the appropriate licenses, certifications, and experience might have difficulty accessing his veins so that multiple sticks were required. But embracing Barber’s standard would effectively bar any lethal injection execution, as well as calling into question innumerable other situations where IV access must be obtained in a carceral setting.”
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