Alabama executes James Barber as SCOTUS denies a stay

On July 21, 2023, Alabama death row pris­on­er James Barber was exe­cut­ed two hours after the U.S. Supreme Court denied his motion for a stay in a 6 – 3 deci­sion. This marks the state’s first exe­cu­tion since a series of three botched exe­cu­tions in 2022 and an inter­nal inves­ti­ga­tion into the Alabama Department of Corrections’ (ADOC) execution protocol. 

Mr. Barber’s lawyers ini­tial­ly request­ed dis­cov­ery into ADOC’s inter­nal review but were denied. They sub­se­quent­ly filed a motion to stay the exe­cu­tion, argu­ing that a lethal injec­tion exe­cu­tion, giv­en the state’s his­to­ry, would vio­late Mr. Barber’s rights against cru­el and unusu­al pun­ish­ment under the Eighth Amendment. Instead, they request­ed the use of nitro­gen hypox­ia, an approved alter­na­tive exe­cu­tion method that wouldn’t require an intra­venous line but has yet to be tested.

The U.S. Supreme Court upheld the low­er court’s deci­sion and denied the motion in a 6 – 3 deci­sion. Although the major­i­ty didn’t pro­vide expla­na­tion for the deci­sion, a minor­i­ty opin­ion was writ­ten by Justice Sotomayor, who was joined by Justice Kagan and Jackson in dissent. 

Highlighting the state’s secre­cy prac­tices, Sotomayor wrote, ​“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.”

In the 2 – 1 denial of Mr. Barber’s claims, the Eleventh Circuit Court of Appeals Judge Jill Pryor shared sim­i­lar con­cerns in dis­sent, stat­ing ​“After a three-month ​“review” of its pro­ce­dures — con­duct­ed entire­ly inter­nal­ly, entire­ly out­side the scope of any court’s or the public’s scruti­ny, and with­out say­ing what went wrong or what it fixed as a result — ADOC swears it is ready to try again, with Mr. Barber as its guinea pig.”

Sotomayor’s dis­sent also high­light­ed the Supreme Court’s recent pat­tern of issu­ing ​“unrea­soned orders vacat­ing long, well-rea­soned stays issued by the Eleventh Circuit,” both in the cas­es of Alan Miller and Kenneth Eugene Smith, who had right­ful­ly pre­dict­ed the state’s fail­ure to car­ry-out their executions.

“Today’s deci­sion is anoth­er trou­bling exam­ple of this Court stymy­ing the devel­op­ment of Eighth Amendment law by push­ing for­ward exe­cu­tions with­out com­plete infor­ma­tion. …This Court has so pri­or­i­tized expe­di­tious exe­cu­tions that it has dis­re­gard­ed well-rea­soned low­er court con­clu­sions, pre­vent­ing both the mean­ing­ful air­ing of pris­on­ers’ chal­lenges and the devel­op­ment of Eighth Amendment law,” Sotomayor wrote.

Mr. Barber was sen­tenced to death for the 2001 mur­der of 75-year-old Dorothy Epps via a non-unan­i­mous jury ver­dict. Sarah Gregory, the grand­daugh­ter of Dorothy Epps, had for­giv­en Mr. Barber and was against the execution.

“At times, I know I’ve failed to do my best. But I made up my mind ear­ly on that mere words could not express my sor­row at what had occurred at my hands. And so I hoped that the way I lived my life would be a tes­ti­mo­ny to the fam­i­ly of Dorothy Epps and also my fam­i­ly, of the regret and shame I have for what I’ve done. I don’t know if I’ve suc­ceed­ed. That’s not for me to judge,” said Mr. Barber’s final statement.