Alabama is due to resume executions on Thursday despite botching three last year and after a review of capital punishment practices in the southern state was largely kept from public view.
The inmate set to die by lethal injection by 6am on Friday is James Barber. Now 54, he was convicted of the murder of Dorothy Epps, who was 75, in 2001.
Maya Foa, joint executive director of Reprieve, a human rights non-profit, told the Guardian: “This could be one in what has been a string of disastrously botched lethal injection executions in Alabama.
“What we have seen time and time again in Alabama but also across the US is prisoners repeatedly put through torturous procedures as the state seeks to end their lives. And even for supporters of capital punishment, the idea that people will be tortured should be anathema.”
The severity of Barber’s crime is not in question. But Epps’s granddaughter, Sarah Gregory, has spoken of how she came to forgive Barber for a murder he used a hammer to commit, while high on crack, alcohol and painkillers.
In autumn 2020, in a letter reported by the Atlantic, Gregory wrote: “I am tired Jimmy. I am tired. I am tired of carrying this pain, hate and rage in my heart. I can’t do it any more. I have to do this and truly forgive you.”
Barber wrote back: “Receiving your letter caused me to break down and sob for several long minutes. You sweet wonderful person! I can’t tell you how much that means to me that you have that kind of spirit in you.”
The two went on to forge a friendship. Regardless, Alabama aims to put Barber to death.
Its recent record is not good. On 28 July last year, it took officials more than three hours to kill Joe Nathan James Jr. On 22 September and 17 November, the executions of Alan Miller and Kenneth Smith had to be abandoned.
Foa said: “Lethal injection is designed to look like a clean, medical process. But lethal injection executions go wrong all the time. In Alabama, these have been demonstrably, miserably botched executions. Joe Nathan James Jr’s execution took three-and-a-half hours, prison officials repeatedly trying and failing to get access to a vein.”
Anti-death penalty campaigners, prominently including Foa and Reprieve, have targeted the supply of lethal injection drugs, forcing states to seek new sources.
Foa said: “It’s really important to note that … the medicines were never designed to be used for lethal injections. When you use them in this way … without medical experts involved, buying drugs off the black market, under-regulated processes, guessing all of the provisions that make medicine safe … then to an extent it is bound to go wrong.
“So Alabama is a case, in the last three executions, that’s pretty staggering. But they did a review of this and then opted to do the same thing again, only to strap the prisoner down for a longer time.”
Lawyers for Barber, who this week filed a last-ditch federal appeal, have cited the botched Alabama executions in arguing his killing would violate the eighth amendment to the US constitution, which forbids cruel and unusual punishment.
They have also described how John Hamm, commissioner of the Alabama department of corrections, began his internal review in November last year.
The review, Barber’s lawyers said in court filings, “was too brief, perfunctory, and should have been performed by an independent investigatory body”. Nor were any details made public before, on 24 February 2023, Hamm told the Republican Alabama governor, Kay Ivey, the review was complete and “the department [was] as prepared as possible to carry out death sentences”. Barber’s execution was then scheduled.
Denying Barber’s attorneys earlier this month, Emily Marks, a US district judge, said the state had made three “meaningful changes” to its lethal injections process.
Two involved personnel: removing officials involved in botched executions and installing replacements. The other change extended by six hours “the window in which the state has to carry out Barber’s execution”, to eliminate “unnecessary deadline pressure”.
Foa said Alabama was trying “to create a facade and essentially blind the public and the witnesses to what’s really happening in that [execution] chamber. And unfortunately, that masking seems to have passed muster with the courts, who have not yet acknowledged that they think this is cruel and unusual punishment”.
Barber has also sought to be executed not by lethal injection but by nitrogen hypoxia, which involves “forcing the inmate to breathe only nitrogen, thereby depriving him or her of the oxygen needed to maintain bodily functions”, and which Alabama has said it wants to use.
Marks rejected Barber’s request because he did not choose the method initially and because, pointing to the reason for the request, Alabama is not “currently prepared to perform executions” that way.
“No state has yet used that method,” Foa said. “And I think states are clinging on to lethal injection in part because they think they can continue to get away with it, because it looks like it’s medical.”
Gregory, the granddaughter of Dorothy Epps, told the Atlantic she did not want Barber to be put to death.
“I don’t want it to happen,” she said. “I don’t want to see it done … it will be hard. I spent so long believing in ‘an eye for an eye’ – I’ve changed.”
She also said some relatives did not feel the same way.
As lawyers pursued his final appeal, Barber spoke to NBC News. He had “no fear of death”, he said, but “a fair amount of trepidation about the process that they obviously haven’t perfected”.
Governor Ivey and the Alabama department of corrections did not respond to requests for comment. A state assistant attorney general has said in court “good faith” efforts were made to correct execution procedures.
Foa said there was “always hope” of a late reprieve. But, she said, “unfortunately, to date, courts have not erred on the side of humanity”.
