Alabama Wants to Kill Jimi Barber
After a year of botched executions, the state is eager to prove that it can kill someone without incident.
Last year, the state of Alabama made history by botching three consecutive executions in its death chamber. Two of the condemned men survived their own executions: Alan Miller and Kenneth Smith. Both were pierced repeatedly with needles in an attempt to set IV lines until the midnight expiry of their death warrants forced their executioners to halt further attempts to kill them.
In light of the crisis, Governor Kay Ivey ordered a temporary moratorium on executions beginning in November, and announced “a top-to-bottom review of the state’s execution process” so that “the state can successfully deliver justice going forward.”
“For the sake of the victims and their families,” Ivey said in the statement emailed to reporters, “we’ve got to get this right.” Ivey lifted the moratorium in a February 24 letter to Alabama Attorney General Steve Marshall directing him to again seek execution dates for prisoners on the state’s death row. No public report of the review’s findings has ever been issued.
Nevertheless, the results of that review stand to be tested in the upcoming execution of James “Jimi” Barber, scheduled for July 20. Barber stands convicted of the 2001 murder of an Alabama grandmother, Dorothy Epps, whom he beat to death with a hammer while heavily intoxicated. In three days, Alabama will again attempt a lethal injection, its first since that recent string of failures—this time with an additional set of imperatives: prove that the state’s Department of Corrections can, in fact, carry out a successful execution; supply that proof to the state attorney general’s office for use in ongoing and future litigation; and pull it all off seamlessly, for the sake of the victims and their families, just as Governor Ivey said. The odds of the state pulling it off remain unclear.
Alabama officials haven’t proved to be responsible judges of their executioners’ skills thus far. The way to test the results of the state’s review, and the effects of its ameliorative efforts, is to try to execute another person. Barber is the unlucky subject of this experiment.
Ivey’s “top-to-bottom review” was inadequate from its inception. On February 7 of this year, during the short-lived moratorium, more than 170 Alabama religious leaders signed an open letter to Ivey expressing hope that the review might take a legitimate shape: “We speak with a united front in requesting an independent, external, comprehensive review of Alabama’s execution protocols and procedures, as has been done in other states with similar problems.” What followed answered none of those descriptors. Rather than appoint an independent commission to investigate her Department of Corrections’ handling of executions and issue a report, as Oklahoma Governor Mary Fallin had in 2014 and Tennessee Governor Bill Lee had in 2022, Ivey instead directed the agency to review itself and release its findings to her. The DOC delivered its report on February 24, mere weeks after the clergy letter exhorting Ivey to undertake a third-party review, and roughly three months after Ivey had declared the moratorium.
Jon Hamm, the commissioner of Alabama’s Department of Corrections, notified Ivey’s office in a letter that the review had wrapped up. “The Department conducted an in-depth review of our execution process,” he wrote, including evaluations of the department’s legal strategies in dealing with prisoners’ final appeals, training procedures for staff and medical personnel involved in executions, the number of medical personnel used by the department for executions, how best to assist medical personnel carrying out executions, and the equipment needed to support the state’s lusty schedule of killing. Hamm said that the DOC had added to its pool of medical personnel, undertaken extra rehearsals, and obtained new equipment in preparation for resuming its duties. He spent much of the letter praising Ivey.
The most significant change in Alabama’s procedures has to do with the amount of time the state’s executioners are given to carry out their mission.
“At your request,” Hamm wrote, “the Supreme Court of Alabama changed its rule for scheduling executions.” He referred to a December 2022 letter from Ivey to the state’s nine highest justices asking that they amend a particular rule so that instead of the court issuing a 24-hour death warrant (with a legally binding midnight expiration time), Ivey herself would be allowed to set a time frame for executions that could span any number of days. Given that Alabama has twice had to call off executions because their executioners failed to set two IV lines by midnight on the given execution dates, this amendment alone—which the court granted Ivey in January of this year—provided a makeshift remedy for a far more serious problem. When Ivey set the time frame for Barber’s execution this May, she gave the state’s executioners the authority to kill Barber anytime between midnight at the start of July 20 and 6 a.m. on July 21. The procedure is scheduled to begin at 6 p.m. on the 20th, and the court’s change means that instead of six hours to access Barber’s veins, the executioners now have at least 12. In plain terms, this creates the possibility that a fully conscious Barber could be strapped to the execution table for half a day while the state’s executioners probe his body for suitable veins.
The identities, qualifications, and training of the medical personnel who execute Alabama’s prisoners are carefully protected by the state. But a few details have become clear in Barber’s ongoing litigation seeking nitrogen hypoxia, Alabama’s other legally available execution method, over lethal injection. Nitrogen hypoxia, a gas-execution method that’s never been tried, remains statutorily an option for the state’s death-row prisoners despite the fact that no protocol currently exists outlining its safe use.
In a hearing earlier this month, Barber’s attorneys revealed that the professional licenses belonging to Alabama’s new IV team include credentials for two paramedics, an advanced EMT, and a registered nurse with a multistate license earned in Florida in 2019. In a pleading filed early last month, Barber’s lawyers told a judge in Alabama’s Middle District that they believed they may have discovered the identity of one of the members of this IV team and had found this person to have multiple arrests for fraud and related civil judgments against him or her.
And, as for the much-vaunted new equipment that Hamm said Alabama added to modernize its execution process: The state told Barber’s attorneys in June that all it had added were “additional straps for securing an inmate on the execution gurney.”
If Alabama’s efforts succeed, Barber is merely the first in line; more executions will soon follow. Alabama is currently enmeshed in litigation concerning Kenneth Smith, whom it failed to execute last fall. This month, Smith’s lawsuit survived the state’s motion to dismiss, bringing Alabama perilously close to the brink of the discovery phase. Soon, unless something changes, it may have to surrender information about its execution procedures and personnel to Smith’s attorneys—something the state has tried desperately to avoid, and which it did successfully avoid by settling with Alan Miller in his lawsuit after the state failed to kill him. In a motion to compel discovery filed this February, Smith’s attorneys warned that as soon as the DOC’s review ended, “we anticipate that Defendants will move to set another execution date for Mr. Smith and effectively moot this litigation before Mr. Smith has an opportunity for discovery” by killing Smith. The successful execution of Barber might aid the state’s argument in favor of resuming executions writ large, including Smith’s.
Barber, meanwhile, is at peace. “I’m in excellent spirits,” he wrote to me recently. “God has been so faithful and kind to me! … To worry is a form of fear, and we don’t have that spirit! Only love, joy, peace and sanity. Fear is an unrealistic concern for something that does not exist. No fear. And if and when that moment appears, Gods promise is about to be mine! No fear or dread Miss Liz. Just a reverent awe for my Lord.”
Barber’s execution, like all of the other past and future executions in Alabama, would be, in Ivey’s telling, for the victims and their families—though in Barber’s case, at least one member of his victim’s family has forgiven him, and isn’t looking forward to his execution. Barber and Sarah Gregory, his victim’s granddaughter, connected via letter in 2020, and have developed a friendship since. Yet victims’ family members who do not wish to see prisoners executed don’t seem to be who the governor has in mind; the botched execution of Joe Nathan James in July of 2022 also happened against the express and vocal wishes of his victim’s family. Whatever desire is actually driving Alabama’s zealous pursuit of judicial killings, it seems related to the wishes of grieving families only theoretically, not specifically.
This story is part of The Atlantic’s Inside America’s Death Chambers series supported by the MacArthur Foundation.
