An Alabama death row inmate has asked a federal appeals court to stop his execution scheduled for this week, arguing the state hasn't made sufficient changes to its capital punishment system after problems relating to several other scheduled lethal injections prompted a three-month pause on executions.
Attorneys for James Barber filed the motion to the 11th Circuit Court of Appeals on his behalf on Friday after a district court judge denied his request for a preliminary injunction to stop his execution by lethal injection, which is scheduled to take place at any time during a 30-hour period starting Thursday morning after midnight, court documents show.
They argued the state has "not made any meaningful improvements to their lethal injection protocol and practices since" an execution and two called-off executions in 2022 -- three cases in which they say the Alabama Department of Corrections had trouble properly establishing intravenous lines.
Barber is set to be the first person executed since Alabama Gov. Kay Ivey asked Attorney General Steve Marshall in November 2022 to halt all executions and requested a "top-to-bottom review of the state's execution process."
The request for the review came after problems with the three other cases came into the national spotlight:
• In November, corrections officials halted the scheduled execution of Kenneth Smith after administrators faced issues finding a vein to set an intravenous line, and after officials said they faced time restraints caused by a late-night court battle.
• In September, officials called off Alan Miller's scheduled execution, citing an inability to meet protocols before a midnight deadline. AL.com reported that after the US Supreme Court ruled the execution by lethal injection could happen, state officials couldn't access Miller's veins within time limits.
• In July 2022, Alabama executed Joe Nathan James Jr. by lethal injection. The Death Penalty Information Center has said the execution was delayed for three hours because of difficulties establishing an intravenous line.
Ivey said in November she did not believe Department of Corrections officials or law enforcement were at fault for recent problems, but that "legal tactics and criminals hijacking the system are at play here."
In February, she said executions would resume after the Department of Corrections said it completed its review. Among other things, the department said it would add to its pool of available medical personnel for executions, and that it conducted rehearsals to ensure staff were well trained and prepared to carry out their duties during the execution process.
That month, Department of Corrections Commissioner John Hamm also cited a recent change in the Supreme Court of Alabama rule for scheduling executions, at the governor's request. The new rule allows the governor to set a "time frame" for the execution to take place, which Hamm said would "make it harder for inmates to 'run out the clock' with last-minute appeals and requests for stays of execution."
In Barber's appeal, his attorneys argued he faces a "substantial risk of severe harm" due to his elevated body mass index, which they say makes it more difficult to access his veins. They said this complication makes him vulnerable to suffering a failed lethal injection.
Barber -- just like Smith and Miller -- has asked to be executed by nitrogen gas rather than lethal injection, which would avoid injection into his veins. The Alabama state legislature has approved the use of nitrogen gas, but the state has said it hasn't yet finalized the protocols.
The 11th Circuit Court of Appeals held a hearing to listen to oral arguments in the case on Monday, court records show. It is unclear when a ruling will be made.
A jury convicted Barber in 2003 of murder in the 2001 death of 75-year-old Dorothy Epps in Harvest, Alabama, court documents show. He was sentenced to death in 2004.
