Alabama completes execution (seemingly without difficulty) after three Justices dissent from stay denial based on execution protocol concerns

As reported in this AP article, “Alabama executed a man on Friday for the 2001 beating death of a woman as the state resumed lethal injections after failed executions prompted the governor to order an internal review of procedures.” Here is more:

James Barber, 64, was pronounced dead at 1:56 a.m. after receiving a lethal injection at a south Alabama prison. “Justice has been served. This morning, James Barber was put to death for the terrible crime he committed over two decades ago: the especially heinous, atrocious, and cruel murder of Dorothy Epps,” Attorney General Steve Marshall said in a statement.

Barber was convicted and sentenced to death for the 2001 beating death of Epps. Prosecutors said Barber, a handyman, confessed to killing the 75-year-old with a claw hammer and fleeing with her purse. Jurors voted 11-1 to recommend a death sentence, which a judge imposed. Before he was put to death, Barber told his family he loved them and apologized to Epps’ family….

It was the first execution carried out in Alabama this year after the state halted executions in November. Alabama Gov. Kay Ivey announced a pause on executions to conduct an internal review of procedures…. Alabama’s governor announced in February that the state was resuming executions. Alabama Corrections Commissioner John Hamm said prison system had added to its pool of medical professionals, ordered new equipment and conducted additional rehearsals.

The last-minute legal battle centered on Alabama’s ability to obtain intravenous access in past executions. Barber’s attorneys unsuccessfully asked the courts to block the execution, saying the state has a pattern of failing “to carry out a lethal injection execution in a constitutional manner.”…

Alabama Corrections Commissioner John Hamm said the two intravenous lines were connected to Barber with “three sticks in six minutes.” The Supreme Court denied Barber’s request for a stay without comment. Justice Sonia Sotomayor wrote a dissent from the decision that was joined by Justice Elena Kagan and Justice Ketanji Brown Jackson. She said the court was allowing “Alabama to experiment again with a human life.”

Justice Sotomayor’s opinion dissenting from the denial of the application for a stay runs 11 pages and is available at this link. Here is how it gets started:

Just last year in Alabama, in three consecutive executions by lethal injection, prison officials spent multiple hours digging for prisoners’ veins in an attempt to set IV lines.  Two of the men survived and reported experiencing extreme pain, including, in one case, nerve pain equivalent to electrocution.  After those executions failed, the State began what it claimed would be a “top-to-bottom” review of its lethal injection process.  Barber v. Governor of Ala., ___ F. 4th ___, ___, 2023 WL 4622945, *13 (CA11, July 19, 2023) (Pryor, J., dissenting).  During this review, conducted by the very agency that botched the executions, the State offered no explanations for the failures and reported “[n]o deficiencies” in its protocols. Id., at *15.

Now, the State seeks to execute James Edward Barber. Barber has timely raised an Eighth Amendment method of execution claim in federal court, arguing that he will be subject to the same fate as last year’s prisoners.  Yet Alabama plans to kill him by lethal injection in a matter of hours, without ever allowing him discovery into what went wrong in the three prior executions and whether the State has fixed those problems.  The Eighth Amendment demands more than the State’s word that this time will be different.  The Court should not allow Alabama to test the efficacy of its internal review by using Barber as its “guinea pig.”  Id., at *11.  It should grant Barber’s application for a stay of his execution.