The details emerged during a Monday hearing at the Eleventh Circuit Court of Appeals in the case of James Barber, who has already served for than two decades in prison for the 2001 murder of Dorothy “Dottie” Epps in Harvest, Alabama. His execution is currently set to proceed Thursday at 6 p.m. inside Holman Correctional Facility in Atmore.
During Monday’s hearing, a lawyer for the state, Rich Anderson, told a panel of judges that Barber’s appeal was an “eleventh-hour” attempt at halting his execution when the state had already made changes to assure that implementing its lethal injection protocol would not “superadd” pain to Barber’s death.
The state’s effort to put Barber to death comes after Alabama botched three consecutive attempts at executions: the lethal injection of Joe Nathan James, which led to his death, and the attempted lethal injections of Alan Miller and Kenny Smith. Both Miller and Smith survived the state’s attempts to kill them.
Difficulty establishing vein access by members of the execution team led to the state’s failures to carry out its grim mission, officials would later confirm.
Those failures led to a brief moratorium on state-sanctioned deaths while its Department of Corrections conducted a review of the execution process. But months later, the in-house review, widely criticized as lacking rigor and independence, led to no substantive reforms of the death penalty system. Instead, the state chose to increase the window of time allowed for executions to be carried out and limited reviews of “plain errors” in capital cases.
Anderson said Monday that a requirement was also added to the state’s protocol that members of the IV team charged with accessing a condemned individual’s veins must be licensed and certified medical professionals.
“That is one of the changes that's been made in the protocol in that it now states that there's personnel to be licensed, certified,” Anderson told the judges.
At one point, Anderson said the members of the IV team, which have been changed since the state’s last three executions, include “advanced EMTs, paramedics, and a nurse.”
Both national EMT and nursing professional standards condemn member participation in executions, lethal injection or otherwise.
“ANA opposes nurse participation in any phase of capital punishment,” the American Nurses Association wrote as part of their official position statement on the death penalty in 2016. “Participation of nurses in capital punishment is contrary to ethical precepts of the Code and several ANA position statements.”
Similarly, the National Association of Emergency Medical Technicians (NAEMT) has said that participating in executions violates professional ethical standards.
“NAEMT is strongly opposed to participation in capital punishment by an EMT, paramedic or other emergency medical practitioners. Participation in executions is viewed as contrary to the fundamental goals and ethical obligations of emergency medical services,” the organization’s statement said.
While the organization wrote that it acknowledges individual views on capital punishment may differ, those opinions do not excuse unethical professional behavior related to executions.
“Regardless of the personal opinion of the EMT or paramedic on the appropriateness of capital punishment, it is a breach of the foundational precepts of emergency medical services, and a violation of the EMT Oath, to participate in taking the life of any person,” according to NAEMT.
In his appeal, Barber has argued that an attempted execution by lethal injection would violate the Constitution, presenting the same cruel and unusual risks that previous condemned Alabamians were subjected to. Instead, Barber has requested that his death come by nitrogen suffocation, an untested, unregulated method of execution allowed by Alabama law.
A federal court, however, rejected Barber’s argument, writing that changes to the death penalty process — an effective 6-hour extension of the timeframe executioners will have to establish vein access, for example — mean that the man’s situation differs substantially from those of Smith or Miller.
Barber appealed the lower court’s decision to the Eleventh Circuit, which heard arguments Monday afternoon.
Mara Klebaner, an attorney for Barber, argued in court that simply allowing Alabama more time to poke and prod her client would increase the risk her client’s rights would be violated, not lessen them.
“More time is worse,” Klebaner told judges.
Both Alan Miller and Kenneth Smith, Alabama’s execution survivors, submitted statements in Barber’s case.
“I also felt nauseous, disoriented, confused, and fearful about whether I was about to be killed.”
In his statement, Miller recalled the experience of the state’s execution team attempting to establish access to his veins.
“Aqua and Green Scrubs split up, and each began working on puncturing different parts of my body,” Miller wrote.
Later, after the state had apparently abandoned its execution attempt, Miller was left strapped to the gurney in the death chamber, he said.
“I also felt nauseous, disoriented, confused, and fearful about whether I was about to be killed,” he wrote.
Anderson, the state’s lawyer at Monday’s hearing, said that a lack of time had been the primary issue in the state’s last two attempts to execute its citizens. With additional time now available, Anderson argued, the potential of any issues does not rise to the level of a constitutional violation.
Anderson is currently running for a judgeship on the Alabama Court of Criminal Appeals and has posted about the Barber case on his campaign’s social media page.
In a statement after the state made its decision to provide a wider timeframe for executions, residents of Alabama’s death row said that the change could lead to “unending torture.”
“Over and over again, Alabama tortured Joe James, Alan Miller, and Kenny Smith by poking and prodding them in invasive, often unsuccessful attempts to gain access to their veins,” the men of Alabama’s death row said. “Alabama’s governor should not have the power to make that process last as long as the state wishes. It could mean unending torture.”
The Eleventh Circuit has not made a decision in Barber’s case as of press time. Any ruling, regardless of outcome, will likely be appealed to the U.S. Supreme Court ahead of Thursday’s scheduled execution.
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