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New York, December 13, 2017—The Alabama Supreme Court today set an execution date of February 22, 2018 for a terminally ill man in a case that would constitute “cruel and unusual punishment,” in violation of the Eighth Amendment of the U.S. Constitution, argues Bernard E. Harcourt, his lawyer and a professor of law and political science at Columbia.
Doyle Lee Hamm, who was convicted and sentenced to death in 1987 for the robbery-murder of a Cullman County motel clerk, has been battling cranial and lymphatic cancer for over three years.
Treatment for the illness has compromised his veins, and lethal injection would likely cause “cruel and needless pain,” according to papers filed by Harcourt, who has represented Hamm since 1990.
“What we’re litigating right now is the specific venous protocol for lethal injection as applied to Doyle’s situation, given his lymphatic cancer, rather than the general cruelty of the drug cocktail in Alabama,” says Harcourt, the Isidor and Seville Sulzbacher Professor of Law, Professor of Political Science, and executive director of the Eric H. Holder Initiative for Civil and Political Rights. “Overall, I have to say, it’s inhumane to execute somebody who’s at the end of his life suffering and battling with cancer.”
Harcourt retained Mark Heath, M.D., an anesthesiologist and professor of medicine at Columbia University, to examine Hamm in late September 2017. Heath assessed Hamm’s condition by using Harcourt’s tie as a tourniquet to probe for veins because corrections officials did not allow him to bring medical equipment into the prison.
“There are no accessible veins on [Hamm’s] left upper extremity (arm/hand) or either of his lower extremities (legs/feet),” Heath found. Use of one “potentially accessible” vein on Hamm’s right hand “would have a high chance of rupturing the vein and being unsuccessful,” he added in a written statement Harcourt filed with the court.
The inability of corrections personnel to inject the drugs properly could “cause Mr. Hamm to become paralyzed and consciously suffocate” and would be “an agonizing death,” concluded Heath, whose research has documented problems in the administration of lethal injections nationwide.
Seven percent of lethal injections in the U.S. between 1990 and 2010 were botched, according to data compiled by the Death Penalty Information Center.
Harcourt asked the court to order corrections officials to disclose how they would successfully complete venous access for the execution, to appoint a special master to oversee a proper medical examination in advance, and to approve an agreed-upon protocol to “humanely achieve lethal injection.”
Harcourt has fought to have Hamm’s death sentence reduced to life in prison without the possibility of parole, arguing, among other things, that Hamm was sentenced based on an unconstitutional prior conviction and after ineffective assistance of counsel. In 2016, the U.S. Supreme Court declined to hear Hamm’s appeal.
Harcourt is assisted in the appeal by two students, Nika Cohen and Phoebe Wolfe, both in their third year at Columbia Law School. Egon Von Conway, a 2017 graduate of Columbia College; Isadora Ruyter-Harcourt, a 2016 graduate of Barnard College; and Anna Krauthamer, executive coordinator of the Columbia Center for Contemporary Critical Thought, are also working on Hamm’s case and supporting the legal team.
In court papers, Harcourt points to the case of David Nelson, a death row inmate in Alabama whose veins were found to be unusable. Heath examined Nelson and testified on his behalf. Nelson’s execution was stayed in 2003; he died in prison in 2009.
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Posted on Dec. 13, 2017