Justice Sotomayor Slams Decision To Execute Ala. Prisoner

By Rosie Manins | July 21, 2023, 5:03 PM EDT ·

U.S. Supreme Court Justice Sonya Sotomayor blasted her colleagues early Friday for allowing Alabama to use a death row inmate as a guinea pig following the state's "tortuous attempts" to execute other prisoners by lethal injection.

In an order issued just after 1 a.m., the Supreme Court denied James Barber's eleventh-hour request for a stay of execution by lethal injection and to review the Eleventh Circuit's July 19 affirmance of an Alabama district court's denial of his attempt to instead be suffocated with nitrogen gas.

Justice Sotomayor's dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson, cited three botched attempts by Alabama to execute other prisoners by injection in 2022.

Justice Sotomayor said two Alabama inmates, Alan Miller and Kenneth Smith, survived their attempted executions by injection in September and November, respectively, and reported experiencing extreme pain, leading to a "cursory and largely secret" review by the Alabama Department of Corrections.

She said the Supreme Court had issued "unreasoned orders" vacating the Eleventh Circuit's "well-reasoned" stays of execution in the cases brought by Miller and Smith, who, like Barber, claimed they were protected from cruel and unusual punishment under the Constitution's Eighth Amendment.

"Today's decision is another troubling example of this court stymying the development of Eighth Amendment law by pushing forward executions without complete information," Justice Sotomayor said. "This court's decision denying Barber's request for a stay allows Alabama to experiment again with a human life."

Justice Sotomayor said the Supreme Court's influence in the Miller and Smith cases had led the Eleventh Circuit to make factual and legal errors in Barber's case. She said the Eleventh Circuit emphasized in deciding Barber's case that the Supreme Court had vacated its stay of execution in Smith's case.

The reasoning by the Eleventh Circuit in Barber's case, relying on the Supreme Court's rulings in the Miller and Smith cases, was "plainly wrong," Justice Sotomayor said.

In cases like Barber's, where a plaintiff has diligently pursued a method-of-execution claim and asked only for an injunction permitting an alternative, available method of execution, the equities of irreparable harm tip strongly in the plaintiff's favor, she said.

"For the state, the harm is using an alternative method of execution that it has already approved," Justice Sotomayor said. "It can still vindicate its interest in enforcing the criminal judgment. Far more consequentially for the plaintiff, the potential harm is experiencing excruciating and unnecessary pain."

Justice Sotomayor blamed the Supreme Court for permitting Alabama's "tortuous attempts" to execute Miller and Smith, who described "intense fear and pain." She said both Miller and Smith had argued Alabama would likely botch their executions, just as it had done with other inmates before, and "they were both right."

She said if the Supreme Court hadn't vacated the stays of execution in the Miller and Smith cases, perhaps Alabama "would have been forced to produce evidence in discovery that could explain what kept going wrong and avoided inflicting unnecessary pain on these two men."

"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," Justice Sotomayor said.

She also ripped Alabama's efforts to investigate its injection execution issues and hide the results, pointing out that no report was published following a three-month inquiry by the Alabama Department of Corrections. She said the department commissioner stated in a brief letter to Gov. Kay Ivey that the department had increased staff, equipment and the time in which executions could be undertaken, without reporting any flaws or explanations for the earlier failures.

"Alabama plans to kill [Barber] 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," Justice Sotomayor said. "The court should not allow Alabama to test the efficacy of its internal review by using Barber as its 'guinea pig.'"

The "guinea pig" comment referenced a dissent in the Eleventh Circuit's July 19 ruling by U.S. Circuit Judge Jill A. Pryor, who said, "Three botched executions in a row are three too many" and Alabama should have to answer "for its extraordinary and systemic failures."

In her dissent, Justice Sotomayor said Alabama prison officials spent hours "digging" for veins in Miller and Smith before calling off their executions. She said that in July 2022, Alabama prisoner Joe James Jr. died after a three-hour execution attempt in which medical personnel struggled to push a needle into his veins.

Barber's challenge of the execution method was timely and "more than justified," Justice Sotomayor said. She said Alabama "has not only failed publicly to account for what went wrong, but also actively obstructed Barber's attempts to find out what happened."

"The Eighth Amendment demands more than the state's word that this time will be different," she said. "Clearly, something went wrong in Alabama in 2022. Yet the state has never accounted for these issues."

Justice Sotomayor indicated other states — including Oklahoma, Tennessee and Arizona — had done a much better job than Alabama of investigating issues with their lethal injection protocols.

Barber was convicted of killing 75-year-old Dorothy Epps, the mother of a friend, in 2001 at her Alabama home. His execution was set for July 20, beginning at midnight and ending at 6 a.m. on July 21, case records show.

Alabama Attorney General Steve Marshall announced Friday that Barber was executed at 1:56 a.m. at the William C. Holman Correctional Facility in Atmore. Marshall said he had authorized the execution to commence at 1:34 a.m.

Counsel for the parties did not immediately respond Friday to questions about the case.

Barber is represented by Robert N. Hochman, Kelly J. Huggins, Jeffrey T. Green and Joshua J. Fougere of Sidley Austin LLP and Paula W. Hinton of Winston & Strawn LLP.

The Alabama respondents are represented by Steve Marshall, Edmund G. LaCour Jr. and Richard D. Anderson of the Alabama Attorney General's Office.

The case is James Edward Barber v. Kay Ivey et al., case number 23–5145, in the Supreme Court of the United States.

--Editing by Janice Carter Brown.

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