An Alabama death row inmate has petitioned a federal appeals court to halt his execution scheduled for this week, arguing the state hasn’t made sufficient changes to its capital punishment system following a three-month moratorium on executions due to problems with several other scheduled lethal injections.
James Barber’s attorneys filed the motion on his behalf with the 11th Circuit Court of Appeals on Friday, after a district court judge denied his request for a preliminary injunction to halt his execution by lethal injection, which is scheduled to occur at any time during a 30-hour period beginning Thursday morning after midnight, according to court documents.
They argued that the state has “not made any meaningful improvements to their lethal injection protocol and practices since” an execution and two aborted executions in 2022 – three instances in which the Alabama Department of Corrections allegedly had difficulty establishing intravenous lines.
Barber is scheduled to be the first individual executed since Alabama Governor Kay Ivey asked Attorney General Steve Marshall to halt all executions and conduct a “comprehensive review” of the state’s execution process in November. The request for a review was made after concerns with three other cases gained national attention.
- In September, officials called off Alan Miller’s execution, citing an inability to meet protocols before a midnight deadline. • In November, corrections officials halted the execution of Kenneth Smith after administrators encountered difficulties locating a vein to set an intravenous line and after officials said they faced time constraints due to a late-night court battle. AL.com reported that after the US Supreme Court authorized the execution by lethal injection, state officials were unable to gain access to Miller’s veins within the allotted time frame.
- In July 2022, Joe Nathan James Jr. was executed by lethal injection in Alabama. According to the Death Penalty Information Center, the execution was delayed for three hours due to intravenous line complications.
Alabama Inmate Don’t Believe Officials
Ivey stated in November that she did not believe officials from the Department of Corrections or law enforcement were to blame for recent problems, but that “legal tactics and criminals hijacking the system are at play here.”
In February, she stated that executions would resume once the Department of Corrections completed its investigation. The department stated, among other things, that it would increase the number of medical personnel available for executions and conduct rehearsals to ensure that all personnel were adequately trained and poised to carry out their responsibilities throughout the execution process.
In the same month, at the governor’s behest, Department of Corrections Commissioner John Hamm cited a recent change in the Supreme Court of Alabama rule for scheduling executions. The new rule allows the governor to designate a “time frame” for the execution, which Hamm said would “make it harder for inmates to ‘run out the clock’ with last-minute appeals and requests for stays of execution.”
Barber’s attorneys argued in his appeal that he confronts a “substantial risk of severe harm” as a result of his high body mass index, which makes it more difficult to access his veins. According to them, this complication renders him susceptible to a bungled lethal injection.
As with Smith and Miller, Barber has requested to be put to death by nitrogen gas rather than lethal injection, thereby avoiding administration into his veins. The Alabama legislature has approved the use of nitrogen gas, but the state has stated that the protocols have not yet been formalized.
The 11th Circuit Court of Appeals held an oral argument hearing on Monday, according to court records. It is unknown when a decision will be reached.
According to court documents, a jury convicted Barber in 2003 of homicide in the 2001 death of Dorothy Epps, 75, in Harvest, Alabama. In 2004, he was sentenced to death.