The Alabama Department of Corrections said the state has done many of the preparations, but it is not ready to use the untested execution method.
“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,” the department said in an emailed response.
Corrections Commissioner John Hamm, speaking to reporters after a legislative committee meeting, referred questions about the protocol to the attorney general’s office. “You’d have to ask the AG’s office on the actual protocol,” Hamm said.
The attorney general’s office last week seemed to suggest the state was ready. The comment came in a court filing opposing efforts to block James Barber’s lethal injection next month. Lawyers for Barber argued the state has a history of problematic lethal injections and he should be allowed to choose execution by nitrogen hypoxia, a method the state has authorized but never used.
“In this case, such an injunction should be limited in scope so as to permit Barber’s July 20, 2023, execution to be conducted by nitrogen hypoxia,” lawyers for the Alabama attorney general’s office wrote in the June 20 federal court filing.
The attorney general’s office did not respond to an email seeking comment. However, Barber’s lawyers said the attorney general’s office acknowledged in a Monday email that the “protocol has not been finalized.”
Nitrogen hypoxia is a proposed execution method in which death would be caused by forcing the inmate to breathe only nitrogen, thereby depriving him or her of the oxygen needed to maintain bodily functions. Alabama in 2018 became the third state — along with Oklahoma and Mississippi — to authorize the untested use of nitrogen gas to execute prisoners. No state has used nitrogen hypoxia to carry out a death sentence.
Barber was convicted of the 2001 beating death of 75-year-old Dorothy Epps. Prosecutors said Barber, a handyman who knew Epps’ daughter, confessed to killing Epps with a claw hammer and fleeing with her purse. Jurors voted 11-1 to recommend a death sentence which a judge imposed.
It is the first execution scheduled in the state as Alabama attempts to resume lethal injection following a series of troubled executions. Gov. Kay Ivey paused executions last year to conduct an internal review of procedures.
U.S. District Judge R. Austin Huffaker, Jr. last year ordered the state to disclose the status of nitrogen hypoxia after the attorney general’s office dangled the possibility of being ready to become the first state to attempt an execution with nitrogen hypoxia. The state later told the judge that the method was not yet finished.
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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