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Sotomayor slams SCOTUS for allowing Alabama to ‘experiment again with a human life’ and treat executed man as ‘guinea pig’


Sonia Sotomayor spoke to the American Constitution Society on June 16, 2022 (image via YouTube screengrab). Inset: James Edward Barber (via Alabama Department of Corrections).

The three justices of the Supreme Court’s liberal wing denounced their colleagues for allowing Alabama, a state with a troubling history of botched executions, to “experiment again with a human life” by executing a man without proper medical protocols.

The Court denied the man’s petition for stay of execution of sentence of death without comment.

James Edward Barber, 64, was put to death by the state of Alabama at 2:00 a.m. local time Friday morning for the 2001 robbery and killing of Dorothy Epps. Barber had been on death row for almost 20 years before he was executed via lethal injection.

Barber’s failed appeal was an Eighth Amendment claim filed after Alabama tried unsuccessfully to execute Alan Eugene Miller and Kenneth Eugene Smith; both executions were stopped when prison officials could not access a suitable vein. Miller was subjected to “sudden and severe pain” while he was punctured in multiple places and Smith reported “stabbing” pain after he was injected repeatedly in the neck.

The execution of a third inmate, Joe Nathan James, whose lethal injection was “concealed behind a curtain for three hours” was eventually carried out. Barber argued that he too would be subjected to unnecessary pain that violated his constitutional protection against cruel and unusual punishment.

After 2022 report concluded that there had been significant problems with Alabama’s lethal injections, Governor Kay Ivey (R) put a temporary halt on all executions while a “top-to-bottom review” of the state’s procedures was conducted.

Sotomayor appeared overtly skeptical of the findings of Ivey’s review. Her dissent was joined by Justices Elena Kagan and Ketanji Brown Jackson.

“During this review, conducted by the very agency that botched the executions, the State offered no explanations for the failures and reported ‘[n]o deficiencies’ in its protocols,” the justice wrote in her dissent.

“Clearly, something went wrong in Alabama in 2022,” Sotomayor said. “Although much about what happened is still mysterious, the State had ‘a series of abortive attempts’ at execution.”

The fault, Sotomayor said, lies with Alabama, which “has never accounted for these issues.” In a footnote, the justice also called out Alabama for failing to respond to questions about its executions in at least the same manner that other states did. Executions in Arizona, Tennessee, and Oklahoma were also called into question by the report — but those states did more than conduct a “cursory and largely secret review,” Sotomayor said.

Although Alabama replaced the IV team with new members and obtained new medical equipment, Sotomayor said that there is no reason to believe things will be meaningfully different during the next execution. She called the Court’s rejection of Barber’s claim “another troubling example of this court stymying the development of Eighth Amendment law.”

“The Eighth Amendment demands more than the State’s word that this time will be different,” she continued. “The Court should not allow Alabama to test the efficacy of its internal review by using Barber as its ‘guinea pig.'”

“[Alabama] considered James’ execution ‘successful’ solely because ultimately it succeeded in killing him,” wrote the justice. “Without any evidence about what went wrong and only the State’s word that it has been fixed, Barber’s allegations that he will experience the same ‘needless suffering’ as James, Miller, and Smith are more than justified.”

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos