The Alabama Attorney General recently objected to his motion, saying it was “time-barred,” unfounded, and contrary to the public interest.
James Barber was arrested in the 2001 death of 75-year-old Dorothy Epps. He was charged with murder, the murder being committed in the course of the robbery or attempted robbery at Epps, and Barber eventually confessed to authorities after his arrest.
Barber was convicted in 2004 and a Madison County jury recommended by an 11-to-1 vote that he be sentenced to death. May 2 in the Alabama Supreme Court issue a death sentence for Barber, authorizing the state to carry out his execution anytime after June 2.
Governor Ivey announced May 30th She set the time frame for Barber’s execution. The 30-hour timeframe is scheduled to begin at midnight on Thursday, July 20 and end at 6 a.m. on Friday, July 21.
Barber’s attorneys filed a lawsuit in the Alabama Middle District Court in late May, asking a federal court to stop his execution and rule that he should die only of nitrogen hypoxia. The lawsuit describes the method as a “readily available alternative.”
Nitrogen hypoxia — or death by replacing oxygen with pure nitrogen — has been legalized for executions by Alabama and two other states, but has never been used by any state. The method was approved in 2018, and this summer death row inmates were given a 30-day window to elect to be executed by nitrogen hypoxia.
At the time, Barber did not choose to be executed by nitrogen. But now Barber’s attorneys have requested that he be executed using the “approved” but untested method because the Alabama Department of Corrections has not yet established a definitive method or procedure for conducting executions under nitrogen.
In the filing, Barber’s lawyers say the team laying the lethal IV lines was not qualified or adequately trained, and called the recent failed executions “botched.” The lawsuit alleges that the lethal injection would expose Barber to “cruel and unusual punishment” because the staff lacked the expertise required to perform this method of execution.
Barber’s call for a different method of execution comes after Alabama Gov. Kay Ivey stayed executions last November to conduct a “top-down” review. The “effective moratorium” came after the execution attempt Kenneth Eugene Smith, It was the state’s second failure to administer a lethal injection in two months and the third failed failure to administer a lethal injection since 2018.
During the review of the execution process, Governor Ivey said requested an amendment by the Alabama Supreme Court that would extend the time limits for writs of execution. On January 13, 2023, The Alabama Supreme Court changed court rules to give the Alabama governor the power to decide how long the state’s executioners can try to end an inmate’s detentione.g. After the review, Ivey announced in February 2023 that the state would proceed with the execution of death row inmates.
Alabama Attorney General Steve Marshall filed an “Opposition Statement” against Barber’s request on June 20, stating, “Barber has not, and cannot, show any prospect of success in the matter, and granting the relief sought would be contrary to the public interest.”
The opposition says Barber’s request is statute-barred because Alabama inmates like him who contest the method of execution used to carry out their sentences must file a complaint within two years of the completion of their direct trial. It also said Barber had failed “to identify any relevant change in the protocol within the 24 months prior to the filing of his complaint.”
Earlier, the US Circuit Court of Appeals for the Eleventh Circuit ruled that the law allowing executions by nitrogen hypoxia meant the method was “readily available” and that it was The US Supreme Court upheld the ruling.
An ADOC representative then sent a statement On September 15, an affidavit was filed regarding death row inmate Alan Miller would not be performed by nitrogen hypoxia. The statement said that ADOC would need thorough training before nitrogen hypoxia could be used in an execution:
“The Alabama Department of Corrections has completed many of the preparations required to conduct executions by nitrogen hypoxia. The protocol for performing runs using this method is not yet complete. Once the nitrogen hypoxia protocol is complete, ADOC personnel will need sufficient time to receive thorough training before an execution can be carried out using this method.” — Alabama Correctional Authority
In the attorney general’s objection, however, Marshall contends that any injunction “should be limited in scope to permit the execution of Barber by nitrogen hypoxia on July 20, 2023” if the court decides that Barber’s request is well founded.
If the federal court rules that Barber can only be executed by nitrogen hypoxia, Alabama could be the first state to use that method of execution.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted."
— Oscar Wilde
but by the punishments that the good have inflicted."
— Oscar Wilde