Alabama agencies disagree on using nitrogen hypoxia in James Barber execution; would be first in nation

Alabama is claiming it could conduct next month’s planned execution by nitrogen hypoxia, becoming the first in the nation to use the new method. But the prison system disputes the agency’s claim, saying they aren’t ready.

The Alabama Attorney General’s Office made the remark in a court filing last week, arguing against James Barber’s wish to die by the approved but not yet tested method. Barber, who is set to die at some point during a time frame beginning at midnight on Thursday, July 20, and ending at 6 a.m. on Friday, July 21, has asked a federal court to call off his lethal injection and rule that he is only allowed to die by nitrogen suffocation.

In a court filing, the Alabama Attorney General’s Office wrote that if the federal judge decides to rule in Barber’s favor, “such an injunction should be limited in scope so as to permit Barber’s July 20, 2023, execution to be conducted by nitrogen hypoxia.”

Alabama has never released a protocol for nitrogen hypoxia executions, nor said the prison system is ready to conduct such executions. A spokesperson for the Alabama Department of Corrections said in an email response that “nothing has changed since our last response regarding nitrogen hypoxia.”

“The Alabama Department of Corrections has completed many of the preparations necessary for conducting executions by nitrogen hypoxia,” said spokesperson Kelly Betts. “The protocol for carrying out executions by this method is not yet complete. Once the nitrogen hypoxia protocol is complete, ADOC personnel will need sufficient time to be thoroughly trained before an execution can be conducted using this method.”

When contacted by AL.com to ask why the office said the state was ready to use the new method, representatives from the Alabama Attorney General’s Office did not respond.

In the same court filing, the Alabama Attorney General’s Office also argued against Barber’s claim that the team who sets the intravenous lines for the lethal injections are not properly trained or qualified.

Barber’s execution, if it goes forward, will be the first in Alabama since last summer’s controversial execution of Joe Nathan James Jr. There were two scheduled executions last fall-- that of Alan Miller and Kenneth Smith-- that were called off just before midnight on their respective execution dates because the IV teams could not set up the lines needed for the three-drug lethal cocktail.

Those failed attempts were followed by Gov. Kay Ivey issuing a three-month halt to executions and the prison system conducting an internal investigation into the lethal injection process.

Barber was convicted in Madison County for the 2001 slaying of 75-year-old Dorothy Epps. 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.

Source: al.com, Ivana Hrynkiw, June 26, 2023

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