The State of Alabama plans to execute Joe Nathan James on July 28. Like eight other men before him, the State targeted Mr. James for an execution date because he had not participated in his own execution by choosing his execution method.
In June 2018, the State of Alabama enacted a law that added nitrogen hypoxia as an alternative execution method to lethal injection. The law provided a 30-day window in which people sentenced to death were forced to choose between two different methods of execution—nitrogen hypoxia and lethal injection.
The use of nitrogen gas as a method of execution is an untested process not previously used in a U.S. execution. The State of Alabama still has not created or implemented a protocol to carry out nitrogen hypoxia executions—making it impossible for people on the state’s death row to make an informed decision about the method.
Many people sentenced to death refused to cooperate in their own executions by choosing a method. Many human rights groups have condemned forcing a person to participate in their own deaths as a violation of fundamental human rights and religious freedom.
Others did not select nitrogen hypoxia because, without help, they could not adequately understand how to elect a new method of execution. Even if a person on death row wanted to make an election, there are no written rules that explain and regulate the procedure for doing that.
Those who did not affirmatively select nitrogen hypoxia before the deadline are now being prioritized for execution.
Since June 30, 2018, the State has sought to execute only those who did not select nitrogen hypoxia: Domineque Ray, Michael Brandon Samra, Christopher Price, Jarrod Taylor, Nathaniel Woods, Willie Smith, Matthew Reeves, Joe James, and most recently, Alan Miller.
That the State is targeting people for execution because they did not select nitrogen hypoxia is demonstrated by Mr. Taylor’s case.
On July 29, 2019, the State requested an execution date for Mr. Taylor, stating in a motion that Mr. Taylor had not timely elected nitrogen hypoxia. As soon as the State learned that Mr. Taylor had, in fact, “made a timely election of nitrogen hypoxia,” the State withdrew its request for an execution date for Mr. Taylor.
The State of Alabama subsequently acknowledged that it is seeking executions only against people who did not affirmatively opt for nitrogen hypoxia, although that was not previously disclosed to condemned prisoners.
In January 2020, the State scheduled its next execution date for Nathaniel Woods. Lawyers for Mr. Woods filed a legal challenge arguing that the process that led to Mr. Woods being prioritized for execution was arbitrary and unconstitutional. They contended it was cruel and unusual for the State to seek an execution date for Mr. Woods ahead of others because he did not participate in the execution process and opt for nitrogen hypoxia.
But the federal courts denied relief and the State of Alabama executed Mr. Woods on March 5, 2020.
Lawyers for Mr. Reeves argued that ADOC’s failure to assist him violated the Americans with Disabilities Act. The federal district court agreed and barred the State from executing him by any method other than nitrogen hypoxia before his ADA claim could be decided on the merits.
The Eleventh Circuit unanimously upheld that order, but, without explanation and over a strong dissent, the Supreme Court granted the State’s application to allow the execution by lethal injection to go forward.
Joe James was convicted and sentenced to death in 1996 after the State relied on illegal hearsay evidence. The Alabama Court of Criminal Appeals reversed his conviction in 1998.
After the appellate court ordered a new trial, the State agreed that a life-without-parole sentence would be appropriate for Mr. James if he pleaded guilty to capital murder.
But his appointed trial lawyers took the case to trial. Following a retrial where counsel presented no mitigating evidence to the jury, Mr. James was convicted and sentenced to death.