The Supreme Court’s ‘anything goes’ attitude on the death penalty

James Barber is dead. He was executed by lethal injection in Alabama early in the morning of July 21.

His execution was the first test of the state’s “revised” execution procedures following a string of badly botched executions in 2022. It was the first opportunity for Alabama to get back in the business of executing death row inmates after Gov. Kay Ivey ordered an investigation of those botched executions by the Department of Corrections (DOC) in November of last year.

Barber was the first to die after DOC Commissioner John Hamm told the governor last February that the department was ready to go.

Barber did not want to die by lethal injection. He feared that he would be the victim of another failure of the most error-prone method of execution ever used in this country.

He wanted to be put to death by nitrogen hypoxia, an alternative seemingly available to him under Alabama law. When that possibility was foreclosed, he simply wanted to know what Alabama had done to correct its previous lethal injection failures, to ensure that he would not experience intense suffering when the state executed him.

Seems simple enough. But for today’s ultra-conservative Supreme Court majority, even that was a bridge too far.

Barber’s case was a test of whether the Supreme Court would defend its already lax methods of execution jurisprudence or bend over backward to give death penalty states still more latitude when it comes to their choice and use of execution methods.

The Supreme Court failed that test.

It took another step in eviscerating the protections that the Eighth Amendment affords to death row inmates. That it did so by refusing even to hear Barber’s case only emphasizes how little interest the conservative justices have in using that constitutional guarantee to ensure that American executions are not cruel. 

On the day he was scheduled to die, Barber asked the court to enjoin his execution and allow him the chance to find out exactly how the conduct of his execution would be different from what Alabama did when it botched the executions of Joe Nathan James, Alan Miller and Kenny Smith.

James died after the execution team made many attempts to insert the IV needed to carry Alabama’s lethal drug cocktail. They tried different places on his hands, arms and feet, before cutting into his arm looking for a vein.

Miller and Smith were subject to similar treatment and repeated failures to access a vein, before their executions eventually were called off.  Given Barber’s medical history, it seemed that he might suffer the same fate.

As Barber put it in his appeal request, he “had a history of medical personnel being unable to access his veins, as well as physical conditions that heighten his risk for superadding pain at the hands of ADOC’s IV Team. Further, … [he] has a Body Mass Index (BMI) of 29 which makes it much more difficult to locate suitable veins.”

Barber alleged that the only changes Alabama had announced in its lethal injection protocol involved “substituting execution personnel without any different qualifications” and “extending the time allowed to attempt an execution.” He wanted the court to decide whether its Eighth Amendment precedents meant that it is “sufficient … for a State to respond to repeated and consistent failures to carry out executions without imposing needless physical suffering and mental anguish” by only making the changes Alabama had made.

Barber also called on the court to reverse the decision of the Eleventh Circuit Court of Appeals in his case, claiming the Eleventh Circuit had not followed or respected existing Supreme Court methods of execution decisions.

The Circuit Court decision meant that “no amount of physical suffering and emotional anguish imposed by allowing hours-long and countless attempts to establish IV access in a lethal injection execution, including the prospect of a failed execution, can ever violate the Eighth Amendment.”

Barber wanted the court to make clear that carrying out “an execution over the course of numerous hours while puncturing the inmate’s body countless times and with increasing pain is both ‘cruel’ and most definitely ‘unusual.’”

Using language taken straight from the court’s own previous rulings, he asked it to rule that “the supposed changes that Respondents made following the three botched executions last year did not address or even relate to the underlying issues causing the repeated failures, and thus do not diminish Mr. Barber’s substantial risk of serious harm.” 

The court denied his request without explanation.

Its refusal drew a stern rebuke from Justice Sonia Sotomayor, who has become the conscience of the court in death penalty cases, much like  Justices Thurgood Marshall and Stephen Breyer during their times on the court.

Sotomayor criticized the court’s conservative majority for allowing Barber’s execution to proceed even though much of what happened during Alabama’s string of botched lethal injections “is still mysterious.” The majority’s unwillingness to give Barber the chance to find out “what went wrong in the three prior executions and whether the State … fixed those problems” would, she noted, allow Alabama to use Barber as a “‘guinea pig’” in violation of the Eighth Amendment.

In Sotomayor’s view, that amendment does not “allow Alabama to experiment again with a human life.” 

She also called out her conservative colleagues for acquiescing in the state’s desire to keep its execution procedures secret and to keep “playing games with a man’s life.”

Justice Sotomayor was troubled by what she saw as another example of the court’s willingness to disregard its prior decisions — and let lower courts do so as well — in order to accomplish its ideological objectives. In this case, she said, the court put a premium on “expeditious executions” even if it meant ignoring the Eighth Amendment and its own precedents.

Sotomayor pointed out that the Eleventh Circuit had willfully misread those precedents, which require a careful, case-by-case and individualized assessment of whether a method of execution “creates ‘a substantial risk of serious harm.’” Instead, the lower court adopted a “categorical rule” that meant that what Alabama had done to James, Miller and Smith, or might do to Barber or others, could never, as the Eleventh Circuit put it, “’rise to an unconstitutional level of pain.’”

The Supreme Court’s decision not to hear Barber’s case, Sotomayor noted, sent a clear message to lower courts that they were free to ignore the Eighth Amendment in deciding inmate challenges to methods of execution.

In the end, the fact that Barber’s execution apparently was not botched does not lessen the damage that the Supreme Court has done to itself, the Constitution, and all Americans.

As the Atlantic’s Elizabeth Bruenig notes, “The constitutional right whose protections lie nearest to the skin, flesh, and blood of each American citizen is the Eighth Amendment. … As with any civil right, if it isn’t enforced, it effectively ceases to exist. … And though its disintegration may go unnoticed by those who, through good sense or good fortune, never encounter governmental punishment, its loss is” another way in which the current Supreme Court is working to “dissolve our rights little by little.”

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including “Gruesome Spectacles: Botched Executions and America’s Death Penalty” and “Lethal Injection and the False Promise of Humane Execution.” The views expressed here do not represent Amherst College.