Barber v. Ivey
| Docket Number | CIVIL ACT. 2:23-cv-342-ECM (WO) |
| Decision Date | 07 July 2023 |
| Parties | JAMES EDWARD BARBER, Plaintiff, v. KAY IVEY, Governor of the State of Alabama, et al., Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
Over twenty years ago, Plaintiff James Edward Barber (“Barber”) murdered Dorothy Epps, a seventy-five-year-old woman, by beating her and striking her with a claw hammer. Now, facing his imminent execution for committing this crime, he is before the Court arguing that his execution by lethal injection will violate the Eighth Amendment's prohibition against cruel and unusual punishment. According to Barber, the State Defendants have demonstrated a pattern of difficulty accessing the veins of inmates during executions. Barber asserts that he faces excessive needle punctures by the IV Team for the Alabama Department of Corrections (“ADOC”) as they attempt to gain intravenous (“IV”) access.
Barber brings a one-count complaint alleging that his impending execution by lethal injection violates his Eighth Amendment right to be free from cruel and unusual punishment. The Defendants are Kay Ivey (“Ivey”), Governor of Alabama; John Q. Hamm (“Hamm”), Commissioner of the ADOC; Terry Raybon (“Raybon”), Warden of Holman Correctional Facility, where the execution is set to occur; Steve Marshall (“Marshall”), the Alabama Attorney General; and three John Does (collectively, “the Defendants”).[1] This matter is now before the Court on Barber's motion for preliminary injunction (doc. 25) wherein he seeks an order enjoining the Defendants from executing him by lethal injection. For the reasons that follow, Barber's motion is due to be DENIED.
The Court has original subject matter jurisdiction of this case pursuant to 28 U.S.C. § 1331. Personal jurisdiction and venue are uncontested, and the Court concludes that venue properly lies in the Middle District of Alabama. See 28 U.S.C. § 1391.
Lethal injection is the default method of execution in the State of Alabama. ALA. CODE § 15-18-82.1(a). Nitrogen hypoxia is an alternative method of execution in Alabama.[2] Id. Death row inmates are afforded one opportunity to elect execution by nitrogen hypoxia. Otherwise, an inmate waives the right to elect the alternative method and will be executed by lethal injection. ALA. CODE § 15-18-82.1(b)(2).
As support for his Eighth Amendment claim, Barber points to the Defendants' recent difficulty in establishing IV access to perform lethal injection executions. Barber first highlights the July 28, 2022, execution of Joe Nathan James, Jr. (“James”). The U.S. Supreme Court denied James' motion to stay his execution shortly before he was strapped to the execution gurney after 6:00 p.m. Attorney General Marshall did not clear the execution to commence until 9:04 p.m. due to difficulty in establishing IV access. (Doc. 18 at 2). James was pronounced dead by lethal injection at 9:27 p.m. (Id.).
Two pathologists conducted autopsies on James' body after the execution. A pathologist for the Alabama Department of Forensic Sciences (“ADFS”) found evidence of “intravenous access to the medial left antecubital fossa and dorsum of the right foot, and additional needle puncture marks in the antecubital fossae, wrist, and hands.” (Doc. 50-7 at 7). The second pathologist found “no signs of excessive needle punctures, and no signs of torture or other abuse.” (Doc. 35-1 at 3). This pathologist “was able to positively identify only two needle punctures.” (Id.). Neither autopsy reported an intramuscular sedative found in James' body following the execution. (Id.).[3]
Barber also points to the next execution attempt by the Defendants on September 22, 2022. The Defendants called off the execution of Alan Eugene Miller (“Miller”) due to problems accessing Miller's veins to administer the lethal injection drugs. At the time of his execution attempt, Miller weighed around 351 pounds, making venous access more difficult. (Doc. 50-20 at 2). Like Barber, Miller filed a lawsuit prior to his scheduled execution asking the federal court to enjoin the Defendants from executing him by any method other than nitrogen hypoxia. (Doc. 50-10 at 1). Around 9:00 p.m., on the day of Miller's scheduled execution, the U.S. Supreme Court denied this relief, permitting the execution to proceed. (Id.). Miller was placed on the execution gurney around 10:15 p.m. (Id. at 2). Medical personnel then began attempts to find a vein by puncturing Miller's “right elbow pit in multiple different spots.” (Id.). After failing to find a vein there, personnel attempted multiple punctures to his right hand, his left elbow, and his right foot. (Id. at 2-3). A puncture in Miller's foot “caused sudden and severe pain . . . like [he] had been electrocuted.” (Id. at 4). After attempts at these spots failed, before midnight, the Defendants called off the execution.
On November 17, 2022, Alabama again tried lethal injection by IV, this time on Kenneth Eugene Smith (“Smith”). Smith also moved the federal court to enjoin the Defendants from executing him by lethal injection. Minutes before his execution was to begin at 6:00 p.m., the district court denied his motion for a preliminary injunction. (Doc. 50-13 at 27). The Eleventh Circuit reversed the district court, staying the execution at 7:59 p.m. (Id. at 28). At 10:20 p.m., however, the U.S. Supreme Court vacated the Circuit's stay and permitted the execution to go forward. (Id.). Shortly after 8:00 p.m., while the Circuit's stay was being reviewed by the Supreme Court, Smith was strapped to the execution gurney. (Id. at 33). After the Supreme Court lifted the stay, medical personnel began attempts to find a vein to begin lethal injection. They repeatedly punctured Smith's right arm and hand, causing pain. (Id. at 36-37). Eventually, Smith's gurney was tilted backward, bringing his feet above his head. (Id. at 37). As attempts to find a vein failed, Smith reported that medical personnel began injecting an unknown clear substance into his neck area with a syringe. (Id. at 38). They then attempted a central line procedure, which is in line with Alabama's execution protocol.[4] (Id. at 39). Around 11:20 p.m., less than an hour after attempts to set an IV line began, the Defendants informed the media on-site that they called off the execution.
Following this second failed attempt to complete an execution by lethal injection, Governor Ivey asked Attorney General Marshall “to withdraw the state's two pending motions to set execution dates” so that the ADOC could “undertake a top-to-bottom review of the state's execution process.” (Doc. 1-3 at 2). One of these pending motions pertained to Barber's execution date. On November 21, 2022, the State withdrew its motion to set Barber's execution date (doc. 1-12), and the ADOC began an internal review of its execution procedures.
On February 24, 2023, Commissioner Hamm informed Governor Ivey that the ADOC's review was complete “and that the Department is as prepared as possible to carry out death sentences going forward, consistent with the Constitution.” (Doc. 1-6). Governor Ivey asked Attorney General Marshall to move the Alabama Supreme Court to issue an execution warrant for an eligible death row inmate. (Id.). He moved to set Barber's execution first. (Doc. 1-7 at 2).[5] The Alabama Supreme Court granted the State's motion and ordered that Governor Ivey shall “set a time frame . . . within which the Commissioner of the Department of Corrections shall carry out James Barber's sentence of death.” (Id.). Governor Ivey subsequently scheduled Barber's execution to be carried out within “a thirty-hour time frame . . . beginning at 12:00 a.m. on Thursday, July 20, 2023, and expiring at 6:00 a.m. on Friday, July 21, 2023.” (Doc. 11-1).
Despite indicating that “[n]o deficiencies were found” by the ADOC's review “in Alabama's execution procedures,” the ADOC made three meaningful changes to the method by which it attempted the three previous lethal injection executions. (Doc. 45-3 at 3). First, the ADOC made a personnel change, replacing the members of the IV team who worked on past executions, noting that “[n]o person who will be responsible for setting IV lines during Mr. Barber's execution participated in any previous execution.” (Doc. 453). Second, Warden Raybon personally “participated in the interviews with candidates” from an expanded pool of medical personnel eligible to place the IV. (Docs. 50-27 at 1-2, 1-5 at 3). “As part of the interview process,” Warden Raybon asked candidates (Doc. 50-27 at 2).
As of June 29, 2023, Warden Raybon “re-verified that” the IV Team members' certifications and licenses “remain valid and current.” (Id.).
A third meaningful change to Alabama's execution method permits the Governor to set an extended time frame to conduct executions. Compared to past execution attempts, the new time frame here essentially extends by six hours the window in which the State has to carry out Barber's execution. This extension is the result of the ADOC's review, which noted that “a single-day execution warrant that would expire at midnight . . . caused unnecessary deadline pressure for Department personnel as courts issued orders late into the night in response to death-row inmates' last-minute legal challenges.” (Doc. 1-5 at 2). The extended time permits the medical...
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