Alabama Failed to Carry Out Its Last Two Executions. It’s Trying Again This Week.
A string of long and bloody lethal injections last year led to a brief moratorium. But an internal review from prison officials remains shrouded in secrecy, and advocates warn new protocols may increase the risk of torturous executions.
This story was supported by a grant from Columbia University’s Ira A. Lipman Center for Journalism and Civil and Human Rights, in conjunction with Arnold Ventures.
Caution: This story describes executions and includes an image from an autopsy.
Under Alabama’s execution protocols, the warden of the Holman Correctional Facility, which houses death row in the state, is supposed to tell condemned prisoners when their execution has been scheduled “prior to any announcement by news media.” But in late May, James Edward Barber found out about his impending execution when the news broke on TV.
Barber’s lethal injection, which is scheduled for Thursday, is set to be the first in the state since a series of long and bloody executions led to a moratorium and review of the state’s protocols for putting people to death. His lawyers, who say Alabama officials didn’t inform him of his execution date until a day after it was announced on the news, argue it showed the state can’t follow its own rules and has done little to fix the problems highlighted by last year’s executions.
“Defendants simply cannot, or will not, carry out their own [lethal injection protocol],” they wrote in a motion last month attempting to stop his execution.
The Alabama Department of Corrections (ADOC), which conducted the recent review of its own death penalty protocols, says it found “no deficiencies” in its execution methods. But the agency has not released its full assessment. The state has also adopted some new protocols, but those rules are shrouded in secrecy.
As the state prepares to resume executions this week, advocates say the new rules, to the extent the state has disclosed them, also appear to increase the likelihood that prisoners will endure torturous executions.
“What we’re concerned about is Alabama’s capacity to carry out these executions in a humane and constitutional manner,” said Angie Setzer, a senior attorney for the Equal Justice Initiative, a nonprofit organization that advocates on behalf of death row prisoners. “Given what we’ve seen, I think there’s real reason for the public to not have that confidence [and] to be concerned about what the state is doing.”
Executioners in Alabama have long struggled with inserting IVs to deliver lethal drugs. In 2018, executioners punctured Doyle Lee Hamm with needles for two-and-a-half hours before calling the execution off because they could not access a vein. His attorneys had warned that the state would encounter problems because Hamm’s veins were compromised from cancer.
Photographs of Hamm taken afterward showed needle wounds all over his body, including six on his groin, which was badly bruised where executioners had attempted to access a central vein. The area leaked blood so heavily during the execution that it soaked through the sterile draping and it had to be changed, according to a legal filing recounting Hamm’s experience.
It took executioners more than three hours to execute Joe Nathan James Jr. last July. By the time the curtain to the death chamber’s witness room opened, he was already on the gurney with his eyes closed and did not move or speak, according to media witnesses. John Hamm, the ADOC Commissioner, told reporters that “nothing out of the ordinary” happened, but a spokesperson for the department said the next day that the delay was due to problems setting the IV line. Doctor Shante Hill, the state pathologist who conducted the official autopsy, reported needle puncture marks in his elbow, wrists, and hands.
Photographs showed what appear to be two horizontal cuts on the inside of James’ elbow. Hill described those marks as “superficial abrasions” but Doctor David Pigott, a professor in the Department of Emergency Medicine at the University of Alabama School of Medicine in Birmingham, who submitted an affidavit on behalf of Barber, said they were more likely evidence of executioners’ departure from traditional IV access strategies and showed an attempt to perform a cutdown procedure on James. The procedure, which is not authorized under Alabama’s protocol, involves cutting deeply into the skin to find a vein and is typically performed by a surgeon during life-threatening emergencies when other attempts to gain IV access have failed, Pigott told Bolts. He said that he agreed with Hill’s assessment but thought that the cuts were so shallow because of the inexperience of the people trying to perform a cutdown.
“They looked like hesitation marks, like somebody was going to cut it and then they decided against it, because there’s clearly cuts there that are very superficial, like barely through the skin,” Pigott said. ADOC has not attributed those marks to another source, such as James’ movements on the gurney, and has maintained that executioners did not perform a cutdown procedure.
In court, the state has cited the affidavit of Doctor Boris Datnow, a pathologist who was hired by human rights group Reprieve to conduct a private autopsy of James. He determined there was “no evidence that a cutdown procedure was performed or attempted on Mr. James.” Datnow, who said he has performed cutdowns himself in addition to autopsies on people who had undergone the procedure, told Bolts that the marks were merely “simple superficial scratches” and said reports that they were evidence of a cutdown are “absolute rubbish.” But asked about Pigott’s claim that there were hesitation marks, Datnow said he was not familiar with the term. “What mark? I’ve never heard the term hesitation,” he said. Pigott, however, wrote in an email to Bolts that the term is frequently used in forensics and emergency medicine. When asked whether pathologists should know what hesitation marks are, Pigott responded, “I would think so.”
Two months after James’ execution, Alabama unsuccessfully attempted to execute Alan Eugene Miller. According to Miller, who detailed his execution in legal filings, two men wearing scrubs stuck Miller in his right elbow, then right hand, left elbow, right foot, right inner forearm, and his right and left arm. Miller said his entire body shook when the needle was inserted into his right foot. It “caused sudden and severe pain,” and “It felt like I had been electrocuted in this foot,” he said. At one point, one of the men used the flashlight application on a smartphone in an attempt to find a vein. After none of those attempts worked, the executioners left the room and ADOC staff adjusted the gurney from a horizontal to vertical position, leaving Miller, who was strapped in and weighed 350 pounds, hanging in the air for 20 minutes.
“No one explained to me why I was being raised into a vertical position or why the men in scrubs had left the room,” said Miller, who felt “nauseous, disoriented, confused, and fearful” as state employees stared at him from the observation room. More than 90 minutes after attempts to set the IV lines began, the execution was canceled.
Two months later, on Nov. 17, 2022, ADOC failed to execute Kenneth Eugene Smith, again because executioners could not establish IV access. The team spent two hours sticking needles all over his body before resorting to trying to insert a thick needle underneath his collarbone, which also was unsuccessful. In an affidavit, Smith said that the multiple punctures “caused me severe physical pain and emotional trauma.”
Days after Smith’s failed execution, Alabama Governor Kay Ivey ordered a moratorium on executions and a “top-to-bottom” review. “I will commit all necessary support and resources to the Department to ensure those guilty of perpetrating the most heinous crimes in our society receive their just punishment,” she wrote in a press release at the time. “I simply cannot, in good conscience, bring another victim’s family to Holman looking for justice and closure, until I am confident that we can carry out the legal sentence.”
But unlike other states, which have ordered independent inquiries after executions in which something appeared to have gone wrong, Alabama officials opted for an internal review by corrections officials. Tennessee officials tapped an outside law firm, whose inquiry spanned seven months and 26 witnesses and resulted in a damning 178-page report that showed the state repeatedly failed to follow its own execution protocols, which eventually led to the firing of two top corrections officials. Alabama’s review, by contrast, lasted just over three months, was conducted by the same department responsible for last year’s executions, and the findings have yet to be made public.
“In those states, we saw a real genuine commitment to getting it right to avoiding sort of a spectacle of prolonged suffering and failure,” said Setzer with EJI. “And Alabama really didn’t do anything. There’s no transparency, no record of what was done. No independent third party review, no outside evaluation, no identification of any problems or proposed remedies.”
Former Alabama Governor Robert Bentley, who oversaw eight executions during his tenure from 2011 to 2017, doubts that an investigation ever even took place. “It’s just my belief that they have not done what they should do because it does not take that long to have an investigation on something like that,” Bentley, who is a Republican like Ivey, told Bolts.
Governor Ivey’s office, Attorney General Steve Marshall, and ADOC officials did not respond to a list of questions from Bolts. The state has denied that team members made errors in the executions that preceded the moratorium and that the protocol review enables it to resume carrying out smooth executions.
“There were certainly two executions in the fall of 2022, in which the state wasn’t able to gain IV access,” an assistant attorney general said during a court hearing on Monday. “But those two can’t be looked at as excluding all the rest of history, because history shows that that’s an aberration and not the rule.”
Alabama has made several changes to the state’s execution protocols since last year, including a new rule that shifts responsibility to the governor for scheduling executions and setting the “time frame” during which they take place. For Barber, who was sentenced to death for the 2001 murder of Dorothy Epps, Ivey has selected a 30-hour period between 12:00 am on July 20 and 6 am on July 21. Previously, that window was narrower, expiring at midnight on the day for which a death warrant was issued.
“This change will make it harder for inmates to ‘run out the clock’ with last-minute appeals and requests for stays of execution,” wrote Hamm, the ADOC commissioner, in a one-and-a-half page letter to Ivey explaining the results of his department’s review.
Advocates for death row inmates say the rule change increases the danger that their clients will experience lengthy periods of torture.
The state was forced to stop past executions during which IV team members could not find a vein because of the deadline. “They only stopped in those cases, because they were obeying the law, and they weren’t going to carry out the execution after midnight. Now that back control is completely removed,” said Brian Stull, a senior staff attorney with the ACLU’s Capital Punishment Project.
“Now that that time period is extended, and they don’t have to complete it by midnight, who knows how long a person could be tortured in the state of Alabama before they’re finally executed?”
Another change involved expanding the state’s “pool of available medical personnel for executions” and obtaining new medical equipment, according to Hamm. As part of the revised protocol, ADOC now requires that IV team members be “currently certified or licensed within the United States.” Yet, the state does not elaborate on what certifications or licenses are mandated.
In court, Barber’s legal team has uncovered more information about Alabama’s plans for their client. While state officials did not initially disclose the new equipment ADOC is planning on using, lawyers have since learned that it only plans to add more straps to restrain prisoners. But medical professionals say that other equipment, such as an ultrasound machine, is typically used for finding veins in tricky situations.
“In my experience, if a nurse was unable to set an IV line in a patient after 15 minutes and three needle sticks, that nurse would need to find a better experienced person to set the line, and/or employ enhanced equipment such as ultrasound,” wrote Lisa St. Charles, a surgical nurse who has set more than 1,000 IV lines, in an affidavit.
In June, Terry Raybon, the warden at Holman who oversaw the previous three executions, submitted an affidavit saying that he had participated in interviewing and selecting new members for the IV team “with extensive and current experience setting IV lines.”
“As part of the interview process, candidates were asked about their relevant experiences, licenses, and certifications,” Raybon wrote, saying that none of the current personnel had participated in James, Miller, or Smith’s executions. The selected team appears to consist of paramedics, advanced EMTs, and a nurse with a Florida license, according to documents produced by ADOC as part of ongoing litigation. Presented with their licenses and certification in a hearing earlier this month, Lynn Hadaway, a Georgia nurse who has worked on hospital IV teams, testified that none of the documents alone are proof that they are trained in setting an IV line. “Certification does not—and licensure does not equal competency,” she said during the hearing.
Notably, ADOC has not released the certifications and licenses of the previous IV team members, so it’s unclear whether the current team’s differ. The department did not reply to questions from Bolts about their qualifications.
Barber’s lawyers say they still have reason to question the qualifications of the execution team. They learned the identity of one member because her name was visible under a piece of white paper produced as part of discovery in the case, and found she had been arrested for fraud related incidents. “If she has been arrested for fraud-related instances, it suggests that maybe her credentials are not necessarily what they are or what she represents them to be,” argued Stephen Spector, one of Barber’s lawyers, in an evidentiary hearing on July 5. “And if she has not necessarily exercised judgment because that person has been arrested for fraud-related instances, I don’t think you could necessarily give that person the benefit of the doubt when it comes to carrying out such an important task.” Barber’s team has not revealed the woman’s identity.
To avoid the risks of a painful lethal injection, Barber has requested to be executed by nitrogen hypoxia, or suffocation by nitrogen gas, a method that has never been used in an execution. Prison officials have said they’ve been preparing for executions with nitrogen since the Alabama legislature authorized the method in 2018, but the state has not released any protocols for using it in executions. Last September, a lawyer in Attorney General Steve Marshall’s office said it was “very likely” the state would be able to execute Alan Eugene Miller that month and had even asked Miller to be fitted with a gas mask, but backtracked shortly after, saying the state was not ready. Then in February, Hamm said ADOC was “close” to finishing protocols around using nitrogen in executions, saying they should be completed by the end of this year.
The state of Alabama has requested to execute Barber with nitrogen should a judge rule that it cannot use lethal injection. However, during an evidentiary hearing earlier this month, a state attorney told a federal district court judge that Alabama was still not ready for executions with nitrogen. The judge ultimately rejected Barber’s request to stop his lethal injection, pointing to the changes in execution protocols since last year. “These intervening actions cut off the emerging pattern of past practices that could have elevated Barber’s claims from purely speculative to actionable,” the judge wrote.
Barber’s team appealed the decision and on Monday, argued in front of the 11th U.S. Circuit Court of Appeals that appointing a new IV team without releasing more details on their experience provided little reason to think their client’s execution would be different than the previous three.
“All the people the state chooses to staff the IV team are fungible and the same,” said one of his lawyers. “It’s like picking up a different can of soda off the shelf from a factory that isn’t passing safety inspections. The state used the same standards of quality control and they’re going to get the same product.”
The judges are expected to make their ruling later this week. Barring intervention from the courts or Ivey, who has the authority to grant Barber clemency, Alabama will move forward with the execution at 6 p.m. on Thursday.
In testimony, Barber has said that because of his faith, he’s not afraid to die. “A little over two decades ago, I was made a promise, and through that promise I have no fear of death,” he said during an evidentiary hearing. “God promised that I would receive eternal life, so death is just a transition for me.”
In the months since learning of Alabama’s plans to execute him on the news, Barber has kept in close contact with his family. Teresa Krulicki, his cousin, and Denise Kisiel, his niece, told Bolts that they talk about everything ranging from updates on his appeals to step-by-step instructions on how to make his red sauce, which she is planning to make in the week following the execution. Neither of them were able to make the trip to Atmore, where Holman is located, because of a scheduling conflict but said they will be together, watching the news closely on Thursday.
“It’s kind of a numbing feeling right now, the whole week feels really numb to me,” said Kisiel. “Talking to him, obviously he’s at peace with it and he comforts me but it’s very numbing, you almost don’t know how to feel.”
Krulicki added, “We’re so sorry for any pain that has been caused to the Epps family, and we are definitely suffering. You know, maybe not as much as them, I can’t say that. But we are suffering too. You know, two lives have been lost.”