Alabama inmate set for execution asks to die by nitrogen, calls recent lethal injections ‘botched’

Lawyers for an inmate who is soon set to die in Alabama are arguing he should be executed by the state’s newly approved, but not yet tested, method instead of lethal injection after one controversial execution and two failed execution attempts on other inmates last year.

James Barber, 64, is currently on death row at William C. Holman Correctional Facility in Atmore. His execution day is approaching, but hasn’t been formally set to a single date [The governor’s office set a time frame for the execution of James Barber that will begin at midnight on July 20 and expire at 6 a.m. on July 21. — DPN, May 31, 2023] : A new Alabama Supreme Court rule allows for an execution warrant to be issued for a “time frame” rather than a single day, allowing the governor to choose the timing of an execution. It’s a shift from how the process formerly worked, when the high court set a 24-hour period for executions. If an execution didn’t happen by midnight on that specified date, the execution had to be called off.

The warrant issued for Barber says Gov. Kay Ivey will set a time frame for Barber’s lethal injection “which shall not begin less than 30 days” from the May 3 order. It’s unclear how long the “time frame” will last, but the order means it must begin sometime after June 2.

The governor has not yet announced the time frame for Barber’s upcoming execution.

Barber was convicted in Madison County for the 2001 slaying of 75-year-old Dorothy Epps. Barber knew Epps because he had previously dated her daughter and he had done home repair work for her. Epps was beaten to death with Barber’s fists and a claw hammer in her Harvest home, according to court records. She suffered multiple skull fractures, head lacerations, brain bleeding, and rib fractures.

In a lawsuit filed by Barber’s attorneys in the U.S. Middle District of Alabama last week, Barber’s lawyers argue he should be executed by nitrogen hypoxia - suffocation on pure nitrogen - instead of lethal injection. The lawsuit calls the method a “readily available alternative.”

The method was approved by the state in 2018, and there was a month-long period that summer for Alabama Death Row inmates to opt-in to choosing this new method to die. Barber did not choose to be executed by the new method.

But that time period and opt-in process has been under intense legal scrutiny in the years since, and the U.S. Eleventh Circuit Court of Appeals has ruled that, although the Alabama Department of Corrections has not finalized a method for carrying out nitrogen executions, the law allowing them means the method is “readily available.” Earlier this month, the U.S. Supreme Court allowed that ruling to stand.

“As Mr. Barber awaits the Governor’s announcement of his execution date, all available evidence suggests that he will suffer the same grisly fate as the last three inmates that Alabama tried to execute,” last week’s lawsuit said. “The (lethal injection) Protocol leads to botched executions; the protocol has not been fixed despite the last three blunders; and Mr. Barber will likely be repeatedly punctured for hours with needles all over his body.”

After Alabama’s controversial execution last summer of Joe Nathan James Jr., followed by the two failed execution attempts of Alan Miller and Kenneth Smith, the lawsuit argues the time isn’t right to execute Barber. The lawsuit calls James’ execution, and the two attempted executions, “botched.”

Barber is the first inmate to have an execution date set in Alabama following Ivey’s three-month moratorium on lethal injections.

In November, following Smith’s failed execution attempt, Ivey halted all executions in the state during an internal review. That review was completed in February and, according to the Alabama Department of Corrections, resulted in changes like purchasing new equipment for lethal injections and having a “vetting process” for outside medical professionals tasked with helping set up executions, according to a letter from prison commissioner John Hamm to the governor.

An updated, redacted version of the department’s lethal injection protocol, attached to Barber’s lawsuit, shows the IV team will have “more (REDACTED) professionals” who “shall be currently certified or licensed within the United States.” The redacted protocol does not specify which license must be held.

The Alabama Supreme Court rule limiting execution warrants to a single day was also changed during the halt at the request of Ivey.

While the rule change allows the governor to set the “time frame” for executions, no specific amount of time that would be legally allowed has been disclosed.

“The (court’s) rule sets no upper limit on this time frame. Indeed, ADOC’s current protocol is entirely silent on what the ‘time frame’ for a lethal injection attempt will be. It is not clear whether this significant piece of information is missing from ADOC’s protocol because ADOC does not know what the timeframe for an execution will be; or because it does know, but does not want anyone else to know— either option is unacceptable for an entity currently seeking an execution,” stated a March filing from Barber’s attorneys.

“If the Governor intends to give ADOC 48 hours, a week, or even a month to try to find an inmate’s vein, the Court needs to know what measures ADOC’s new execution protocol imposes to ensure that the person being executed does not experience unconstitutional pain and suffering during that time.”

The Alabama Attorney General’s Office has not yet responded to the lawsuit.

Setting up intravenous lines for the three-drug lethal injection cocktail has been an issue at recent executions, with the prison system admitting Miller and Smith’s executions were called off after the two required IV lines could not be established in time. The state has never revealed who sets those lines, or what type of professional training is required to be on the “IV team.” But Barber’s lawsuit claims one member of the IV team “is or was” a physician, and the other two people “are or were” Emergency Medical Technicians. The suit says “no member of the IV Team has sufficient relevant medical expertise to set IV lines in a humane manner, and they knowingly and willingly subject condemned men to needless suffering due to their own incompetence.”

Barber was found guilty in 2003, and a jury recommended the death penalty by a vote of 11-1. His case wound its way through appeals courts, and last year, the U.S. Supreme Court declined to review his case.

“An execution warrant from this Court is not a blank check for ADOC and the Governor to experiment with new methods to take a human life, in secret, for as long as they please,” Barber’s legal team wrote in a March filing.

Source: al.com, Ivana Hrynkiw, May 29, 2023

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