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Supreme Court clears the way for Alabama to resume executions

On Friday morning the Supreme Court declined to block the execution of James Barber, who was sentenced to death in 2003 for the brutal murder of 75-year-old Dorothy Epps. Barber died by lethal injection at a prison in southern Alabama a few hours later. Barber’s execution followed a trio of botched lethal injections in 2022, two of which went so badly that they were eventually called off.  

The court’s three liberal justices dissented from the decision to allow Barber’s execution to proceed. In an 11-page opinion joined by Justices Elena Kagan and Ketanji Brown Jackson, Justice Sonia Sotomayor wrote that the court’s “decision denying Barber’s request for a stay allows Alabama to experiment again with a human life.”

Barber came to the Supreme Court on Thursday afternoon, asking the justices to block Alabama from executing him by lethal injection. In the wake of the three botched executions in 2022, Alabama Gov. Kay Ivey had ordered a moratorium on executions by lethal injections, as well as a review of the state’s lethal injection protocol. However, Barber contended, that review “led to no meaningful changes” in the protocol other than an extension of the time to set an IV line for the lethal injection.

Barber argued that executing him by lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment. He had a “history of medical personnel being unable to access his veins, as well as physical conditions that” increase his risk for experiencing additional pain. In light of the botched 2022 executions and the failure by the Alabama Department of Corrections in its review to take any real steps to address the problems in its lethal injection protocol, Barber contended, he faced a substantial risk of serious harm at the state’s hands, and should be executed by nitrogen gas instead.

In a brief unsigned order issued shortly after 1 a.m. on Friday morning, the Supreme Court turned down Barber’s request to intervene.

Emphasizing that the “Eighth Amendment demands more than the State’s word that this time will be different,” Sotomayor criticized Alabama’s lack of transparency in its internal review of its lethal injection protocol. “Clearly,” she wrote, “something went wrong in Alabama in 2022.” But the state’s “top-to-bottom review” did not produce a published report; instead, she noted, it yielded only a “one-and-a-half page letter to the Governor, without reporting any flaws or explanations for the prior failures.”

The “piecemeal changes” that the corrections department did make in response to the review, Sotomayor added, “appear designed only to ensure that” it “has an even greater period of time in which to search the bodies of its prisoners for IV access. They do not address the unnecessary pain those prisoners may experience.” “Without any evidence about what went wrong and only the State’s word that it has been fixed,” Sotomayor concluded, “Barber’s allegations that he will experience the same ‘needless suffering’ as” the prisoners in the 2022 executions “are more than justified.”

Sotomayor also flagged what she characterized as a broader problem with the court’s decisions allowing executions to go forward. In particular, she suggested, when the Supreme Court lifts stays of execution that the lower courts have granted, the lower courts rely on those rulings, even when they are only brief, unsigned orders that do not contain any legal reasoning, to reach erroneous conclusions. If the Supreme Court continues to do so, she wrote, some questions arising from executions “may never be answered.”

John Hamm, the commissioner of the Alabama Department of Corrections, said after Barber’s execution that medical personnel were able to set two IV lines – one in each of his hands – within six minutes.

Steve Marshall, the state’s attorney general, said in a statement that Barber was pronounced dead at 1:56 a.m. central time on Friday. “Justice has been served,” Marshall said.

This article was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Supreme Court clears the way for Alabama to resume executions, SCOTUSblog (Jul. 21, 2023, 2:04 PM),