Supreme Court denies stay in Alabama case, allowing execution to proceed

Update: Oklahoma executed Jemaine Cannon on Thursday. Early Friday morning, Alabama executed James Barber. Also: SCOTUS ethics legislation moved forward.

Both Alabama and Oklahoma planned to kill someone on Thursday.

And while Oklahoma executed Jemaine Cannon, the 14th execution in the U.S. in 2023 and second in Oklahoma this year, on Thursday, Alabama’s execution of James Barber was delayed while the state awaited a Supreme Court ruling on Barber’s request for a stay of execution.

A little before 12:30 a.m. CT Friday, however, the Supreme Court issued its ruling, denying Barber’s request over the objection of the three Democratic appointees.

“Today’s decision is another troubling example of this Court stymying the development of Eighth Amendment law by pushing forward executions without complete information,” Justice Sonia Sotomayor wrote for the dissenters, who would have granted Barber a stay of execution.

After referencing Alabama’s previous botched and failed executions, which led to a claimed review of the state’s execution process, Sotomayor wrote, “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 [Joe Nathan] James, [Alan Eugene] Miller, and [Kenneth Eugene] Smith are more than justified.”

Sotomayor concluded, “This Court’s decision denying Barber’s request for a stay allows Alabama to experiment again with a human life. I respectfully dissent.”

The Republican appointees gave no explanation for their decision, as is usual in such shadow docket rulings.

Alabama Attorney General Steve Marshall, a Republican, announced that Barber’s time of death was 1:56 a.m. CT. It was the 15th execution in America in 2023 and the first execution of the year for Alabama.

[Note: This opening section was updated to reflect the latest news, with the final update at 12:30 p.m. ET July 21.]

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Earlier story:

Alabama is scheduled to execute James Barber on Thursday — or Friday. It would be the state’s first execution since a series of failures by the state led to a claimed “top-to-bottom review” that resulted, primarily, in a decision that the state should be given more time to try to carry out its executions.

The state apparently concluded that its inability to actually complete an execution — something that happened multiple times — was due to the fact that the state’s death warrants were only good for 24 hours. Republican Gov. Kay Ivey’s review fixed that. Now, death warrants are good for 30 hours.

Well done, all.

The review also led to planned new hires, new equipment, and execution “rehearsals.”

Lauren Gill and Daniel Moritz-Rabson reported more on the situation in Alabama this week at Bolts:

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. 

Alabama’s capital punishment experiment will apparently continue full-steam ahead with Barber, convicted of the 2001 murder of Dorothy Epps, in the execution chamber — unless a court steps in to stop the state.

The matter reached the U.S. Supreme Court on Thursday afternoon.

In stark terms, Barber’s lawyers brought the following two questions to the justices for review:

Baze is a reference to Baze v. Rees, the 2008 Supreme Court decision setting forth the modern standard for assessing challenges to the method execution.

The lawyers are, as is the ordinary situation in these cases, also seeking for a stay of execution in conjunction with the certiorari petition.

Alabama hours later filed its opposition to Barber’s request, reframing the issue.

Barber’s lawyers filed their reply by 6 p.m. ET, an hour before the execution was scheduled to begin at 6 p.m. CT.

As of 11 p.m. ET, however, the Supreme Court had not issued any order in the case.

A split panel of the U.S. Court of Appeals for the Eleventh Circuit had rejected Barber’s Eighth Amendment claim on a 2-1 vote on Wednesday, leading to Thursday’s Supreme Court filings.

Judges Elizabeth Branch and Robert Luck, two Trump appointees, voted against Barber’s claims, while Judge Jill Pryor, an Obama appointee, dissented.

Branch, for the majority, wrote that, “based on the evidence presented, the district court did not clearly err in finding that the intervening changes made by the ADOC “have disrupted the pattern [addressed in a case before the state’s review],” rendering Barber’s claim that the same pattern would continue to occur purely speculative.”

In dissent, Pryor concluded, bluntly, “Three botched executions in a row are three too many. Each time, [Alabama Department of Corrections] has insisted that the courts should trust it to get it right, only to fail again. Mr. Barber has raised a serious and substantial Eighth Amendment claim that the pattern will continue to repeat itself.”

As to the majority’s decision, Pryor countered, “The district court clearly erred, and therefore abused its discretion, in finding that changes in IV team personnel and amendments to the procedural rule giving ADOC extra time to complete executions will stop this pattern without any evidence of what caused the past problems or how these changes will address those specific causes.”

[This section was expanded and updated to include information about the U.S. Supreme Court and U.S. Court of Appeals for the Eleventh Circuit litigation, with the final update at 11:00 p.m. ET.]

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Oklahoma, meanwhile, is set to continue its plan for dozens of executions with its first execution in six months on Thursday.

The scheduled execution of Jemaine Cannon on Thursday would be the second since Attorney General Gentner Drummond took office, but the first since Drummond began addressing the state’s death penalty process. (The first execution during Drummond’s tenure took place on his fourth day in office.)

Oklahoma had been in the midst of a planned 25-execution spree that was scheduled to take place over two-and-a-half years. Drummond has taken steps to slow that down significantly, although with the only formal purpose being to space out the executions more.

Drummond has gotten headlines, including at Law Dork, for agreeing with lawyers for Richard Glossip in the U.S. Supreme Court that Glossip’s conviction — and current death sentence — should not stand. Glossip is one of the 25 people part of the planned execution spree, but the U.S. Supreme Court currently has put his execution on hold while it considers his appeals.

Drummond is by no means a death penalty opponent, though.

He strongly opposed clemency for Cannon, who was convicted of murder for the fatal 1995 stabbing of Sharonda Clark. Calling him a “monster” in a statement when Cannon’s clemency request was denied, Drummond added, “Justice will be served when the death penalty is carried out July 20.”

No other executions are scheduled to take place in the country this month.

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Supreme Court ethics, reform, and fallout

At 9:30 a.m. Thursday, the Senate Judiciary Committee is set to mark up and vote on Supreme Court ethics legislation — S. 359, the Supreme Court Ethics, Recusal, and Transparency Act of 2023.

[Update, 2:30 p.m.: The bill was reported favorably to the full Senate on an 11-10 party-line vote.]

The bill would require the Supreme Court to issue a code of conduct for the justices. Additionally, the bill sets forth some standards for how complaints alleging violations of the code of conduct are to be handled, as well as disclosure and recusal standards. Lastly, the bill also addresses party and amici disclosure standards.

While it’s not enough (and almost certainly won’t become law this year anyway), this will be a key moment for supporters of court reforms to let their voices be heard.

Watch Democratic Sen. Sheldon Whitehouse. This is his bill on his issue, so this vote is going to be the culmination of a significant amount of work for him.

Speaking of the Supreme Court, here are two other stories — incidentally also out of Alabama and Oklahoma — highlighting how things can remain very unclear, even after big high court rulings:

• Alabama’s Republican lawmakers apparently don’t care about the U.S. Supreme Court’s voting rights ruling, as they essentially ignore both the import of the high court’s decision and the actual decision of the three-judge district court in the case challenging the state’s congressional map. “The map approved by the Senate on Wednesday does not add a second majority Black district,“ as AL.com reported. There’s a similar House-passed map as well. This is going to get messy. (And likely will end up back at the U.S. Supreme Court.)

• Oklahoma — Tulsa and the Muscogee (Creek) Reservation specifically — is the site of a dispute about whether Tulsa can issue a traffic citation to Justin Hooper, a member of the Choctaw Nation. The case follows up on a 2020 Supreme Court decision, McGirt v. Oklahoma, that barred certain state and local prosecutions of tribal members on tribal lands. The U.S. Court of Appeals for the Tenth Circuit had sided with Hooper on several key questions in the case in June. On, Wednesday, the appeals court denied Tulsa’s request to stay its mandate in the case, setting up a possible request for Supreme Court intervention.

Finally, while we’re talking SCOTUS, I’ll give Elie Mystal, Leah Litman, and Aaron Belkin the last word(s), as they talk about Supreme Court term limits. (Spoiler: They don’t like them.)

[Correction, 10:00 a.m.: This story has been corrected a few places to reflect that the scheduled executions and committee meeting are all set for Thursday, not Tuesday (as it initially stated in a few places).]