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Alabama's last two executions failed. They're trying again next week

SCOTT DETROW, HOST:

Elizabeth Bruenig says she has never done an interview like the one she did last year.

ELIZABETH BRUENIG: He called me the night of his attempted execution. And, you know, I don't think I've ever spoken to anyone in the course of my reporting who was so shaken.

DETROW: It was last November. Alabama officials had just tried to execute Kenneth Smith, who 34 years earlier had been convicted in the murder for hire of Elizabeth Sennett. They had tried to execute him, but they had failed.

BRUENIG: They sat him down in the prison office and allowed him to make a phone call to his wife. And he asked her to three-way me in. He just wanted to make sure that he got down on the record what happened immediately while it was on his mind.

DETROW: Bruenig had reported a series of stories about problems with lethal injection in Alabama, and so Smith had named her as a personal witness to his execution. But she never made it to the viewing room. No one did. Instead, here's what happened according to what Smith told her in that interview and his lawyers later laid out in legal briefs. And a warning here that throughout the next 15 minutes or so, there's going to be some graphic descriptions.

BRUENIG: So Kenny was strapped down to a gurney for, I believe, a total of 4 hours. Even though he won a stay in the 11th Circuit, he was kept strapped down and not given any information about the course that his litigation was taken.

DETROW: That stay was vacated by the U.S. Supreme Court, and execution workers began trying to set IV lines.

BRUENIG: He was pierced all over with needles. They tried, I believe, his wrists, a foot. Once they were unable to set two IV lines, they decided to try to set a central line in Kenny's neck. And so they took a heavy gauge surgical needle, but they missed. So instead of inserting that needle into his subclavian vein, they just shoved it down into soft tissue.

DETROW: The state's death warrant expired at midnight, and with 12 o'clock approaching, the executioners gave up. When Smith talked to Bruenig on the phone later, he told her he was unable to pick up his arm. She said the pain lasted for a month afterward. This was the second failed execution in a row in Alabama.

(SOUNDBITE OF PRESS CONFERENCE)

STEVE MARSHALL: What occurred on November 17 was a travesty but not for the reasons that many death penalty opponents and death row sympathizers would have the public to believe.

DETROW: This is Alabama Attorney General Steve Marshall at a press conference last year.

(SOUNDBITE OF PRESS CONFERENCE)

MARSHALL: It was a travesty of justice not for Kenny Smith, the twice-convicted murderer who was scheduled to be executed that day, but it was for Elizabeth Sennett and for the members of her family.

DETROW: After the failed execution of Smith, Governor Kay Ivey put a pause on executions in order to, quote, "top-to-bottom review of the state's death penalty protocol." Alabama's review is complete, and next week, on July 20, the state will again attempt to put a man to death - a man named James Barber. So what do Alabama's failed executions say about the future of death by lethal injection? The Atlantic's Elizabeth Bruenig has covered Alabama's execution efforts deeply and extensively. She served as a witness at both of those failed attempts, even though, like all other official witnesses, she didn't see much at all. I asked her to describe what was happening to these men's bodies as the state tried to carry out these executions.

BRUENIG: You know, just think of any time you've had blood drawn. And if you've ever had them, you know, fail to get a vein, just imagine that happening upwards of a dozen times. And instead of it just being in what's called the antecubital fossa, which is the inside of your elbow, imagine them starting to try veins all over your body. And that's what's happening to these men. They can't set these lines. They need to set two. Oftentimes they're failing to set even one.

DETROW: What is going wrong here? Is it that the executioners are not trained - that they don't know what they're doing? Is there a broader problem? It - it's - you know, if you set aside whether or not you think the death penalty is a moral thing that should be happening, this is something the state says it's going to do, and it is not able to accomplish this.

BRUENIG: Yes, it seems to be a problem with the executioners themselves. It's possibly a problem with their training. So little is known about the executioners and the execution procedures - because of state privacy protocols - that it's really impossible to have a sense of what training they do have. The state says that they are licensed. Currently, they say their IV team is made up of two paramedics, an advanced EMT and a nurse. So that's who's currently on the IV team and is going to have a chance to execute Jimmy Barber.

DETROW: The state throughout the process has been defiant about this. But after the failed execution that we heard about earlier of Kenneth Smith, the governor, Kay Ivey, did order a pause and an internal review of the state's death penalty protocol. What, if anything, has that found? What, if anything, has changed?

BRUENIG: So that review was a special one in the history of execution protocol reviews. Other states have reviewed their execution processes and procedures. Oklahoma did, and Tennessee did, I think, in 2022. In both cases, those states formed independent commissions to review their execution procedures and processes and issue reports that were eventually made public. In this case, Governor Kay Ivey asked the Department of Corrections to investigate itself and issue its findings to her. So there was nothing independent, there was nothing third party, there was nothing external and there was nothing public about this review. So what's known about it is very little.

At the conclusion of this review, which began in November of 2022 and ended in late February of 2023, commissioner of the DOC, John Hamm, sent a letter to Kay Ivey. And what he basically said was, thank you for changing the rules so that instead of having only 24 hours for the execution of a death warrant, now when they run into midnight, they can just keep on piercing because they have until 6 a.m. He also said they've done more rehearsals, that they've added new medical personnel and new equipment. It was later found in a discovery process with Barber's team, I believe, that that new equipment amounted to gurney straps on the gurney.

DETROW: So I just want to underscore this. There's been no public report. There were no public hearings. There's little, if any, public evidence of what this review found. This is entirely on context clues.

BRUENIG: Right - context clues and what's been turned up through litigation.

DETROW: You mentioned Barber, James Barber, is, as of this moment, scheduled to be put to death on July 20. That's next week. What is the background on his case?

BRUENIG: Yes. James Barber beat to death Dottie Epps, who was a very elderly woman in Alabama, with a claw hammer. He was extremely intoxicated on crack cocaine. He was also drunk and had been using prescription pain pills at the time - so just very inebriated, very intoxicated - since then, has been extremely remorseful, has a clean record in prison and has been in touch with his victim's granddaughter, Sarah, who has developed a strong relationship with Jimmy and has forgiven him. And so Jimmy is at peace now, I'd say, more so than other guys I've worked with. He's sort of, you know, comforting his attorneys and people who are working with him.

DETROW: You have mentioned several times the state's general response to all of this. But I just want to talk about that for a moment. Alabama Attorney General Steve Marshall spoke last year about his state's ability to carry out executions. He blamed the two failed executions on inmates themselves and their legal strategy of trying to, quote, "run out the clock." And he dismissed Smith's allegations of torture.

(SOUNDBITE OF ARCHIVED RECORDING)

MARSHALL: The cold-blooded convicted killer complains about the prodding and poking of a small IV line. Really? Let's consider the awful irony of Smith's complaints. He is the monster convicted of the murder of a woman who was stabbed 10 times with a 6-inch survival knife.

DETROW: He goes on to describe in detail the murder itself, and I'm wondering what your response is.

BRUENIG: Well, I mean, the fact that it's not been proven that it was Kenny who stabbed her notwithstanding, I don't think that the law holds that we are going to do whatever a prisoner did to them, right? I mean, I think a lot of people feel like there would be a great symmetry in that, in just repeating a perpetrator's crime upon them. There's also a great barbarism in that, in that you actually become a perpetrator of a crime in that situation. And so I disagree with Marshall that a person's Eighth Amendment rights not to be cruelly and unusually punished don't matter based on their crime.

DETROW: And obviously, a man's life is in the balance here. But what else is at stake as Alabama tries this again?

BRUENIG: Well, if Alabama can successfully execute Jimmy Barber, they're going to take that to the courts and try to use it as evidence that it's just business as usual and that this string of three botched executions requires no more attention in future litigation.

DETROW: Elizabeth Bruenig is a staff writer at The Atlantic, and her coverage of Alabama's lethal injections was a finalist for the Pulitzer Prize. Thanks so much for talking to us.

BRUENIG: Thanks so much for having me on.

(SOUNDBITE OF MUSIC)

DETROW: I'll note here, NPR reached out for interviews with the governor of Alabama and the state's prison commissioner and the attorney general - all declined. Marshall's office said, quote, "while the AG would like to discuss the heinous crimes committed by Mr. Barber and why he deserves to die, he is unable to because litigation is ongoing."

(SOUNDBITE OF MUSIC)

DETROW: Are Alabama's problems with lethal injection an exception or the rule? Deborah Denno is a death penalty expert at Fordham Law School, and she studied lethal injection and joins me now. Hey there.

DEBORAH DENNO: Hi.

DETROW: So let's just start right there. How widespread are problems like the ones we saw in Alabama last year?

DENNO: I think Alabama is the rule. It's really not the exception. I mean, lethal injection started in this country in 1982. And from the very start, there were botched executions. I think they've gotten even worse after drug shortages in 2009 and 2010. So Alabama's just representative of a number of other states.

DETROW: I mean, I feel like the outsider, oversimplified question about all of this is that, you know, on paper, people are really just setting IV lines, right? This is something hospital workers do every single day. Why do prison systems struggle to do this?

DENNO: I mean, it's really the million-dollar question, isn't it? And there's several reasons. I mean, first of all, this is not a procedure that's taking place in a hospital. It's taking place in a prison setting with all the constraints associated with that. You know, you can't see. You don't have the kind of equipment that you would have in a hospital. And No. 2, you certainly don't have the experienced people who would be conducting these procedures. And No. 3, the - you know, the inmates who are being injected are - many of them have drug abuse problems, or they're very frightened, or they're extra muscular. They have physical challenges that just add to this component.

DETROW: Yeah. I guess, why keep using it then? The method of execution has changed many, many, many times over the course of human history, over the course of U.S. history. Why stick to lethal injection when it's so fraught?

DENNO: Well, there are two main answers to that question. I mean, No. 1, if a state tries to change to another method of execution, it's a concession that lethal injection in that state is problematic. In other words, the state is basically saying, we have a problem, and states don't want to do that. It jeopardizes their ability to enforce the death penalty and to continue on with executions, and it makes them look incompetent even though we know they're incompetent. The second reason that comes up particularly problematic with lethal injection is, where else do you go? You know, lethal injection is, you know, No. 6 in the methods of executions that have been used in this country. And where else are you going to go?

DETROW: I mean, in your opinion, is there a method of execution that does not amount to cruel and unusual punishment?

DENNO: I think of all the methods of execution that we have used in this country or in that - that are on the books, at least with at least one state is firing squad.

DETROW: Yeah.

DENNO: There's no question that that's a method of execution that's certain - it - death is quick, or as quick as it can be. We know is - it's probably as painless as it can be. And it's just a question of using it. I mean, ironically, firing squad is associated with the Wild West in this country and with barbarity, but it's certainly more - far more humane than lethal injection.

DETROW: That's Deborah Denno of Fordham Law School. Thanks so much.

DENNO: Thank you. Transcript provided by NPR, Copyright NPR.

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