Alabama’s Botched Lethal Injection Amounts to “Torture,” Columbia Law Professor Argues

Professor Bernard E. Harcourt will return to Holman Prison Sunday morning with Dr. Mark Heath for a full medical examination of death row inmate Doyle Lee Hamm

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New York, February 24, 2018—On Thursday night, Feb. 22, 2018, the state of Alabama attempted to execute Doyle Lee Hamm, a 61-year-old man with lymphatic cancer and carcinoma who has been on death row for 30 years. For months, Bernard E. Harcourt, his lawyer and a professor of law and political science at Columbia, had argued to the federal courts and the Governor of Alabama that any attempt to perform lethal intravenous injection on Hamm would constitute “cruel and unusual punishment” because of his compromised veins, in violation of the Eighth Amendment of the U.S. Constitution.

After the U.S. District Court in Birmingham ordered a special procedure for Hamm’s lethal injection prohibiting Alabama from trying to enter Hamm’s veins in his arms and hands, and after the Eleventh Circuit U.S. Court of Appeals in Atlanta further required the presence of a doctor and ultrasound equipment, Harcourt petitioned the U.S. Supreme Court at 2 p.m. on Thursday to halt the execution due to Hamm’s compromised veins.

The Supreme Court entered a temporary stay to consider Harcourt’s cert petition and application for a stay, but ultimately denied the stay at approximately 8:40 p.m., over the dissent of Justices Ruth Bader Ginsburg and Sonia Sotomayor, and Stephen Breyer.

Ginsburg and Sotomayor protested that “The District Court and Eleventh Circuit erroneously premised their rejection of Hamm’s claims on novel understandings about how Hamm’s execution would be carried out—understandings gleaned from a stipulation and an affidavit to which Hamm was given no opportunity to respond.”

Immediately following the denial of stay by the Supreme Court, Alabama began its execution protocol. According to Harcourt, Hamm was taken into the execution chamber and strapped onto the lethal injection gurney. Two members of the IV execution team entered the death chamber and immediately began to work on Hamm below his knees on both the left and right sides. The two members of the IV execution team worked at the same time, each taking one side of Doyle Hamm’s body, in an attempt to find a vein anywhere in his lower extremities for peripheral venous access. The IV execution team inserted needles multiple times on his left and right legs and ankles, each time forcing the needles into his lower extremities.

According to Harcourt, at one point, the IV execution team turned Hamm over onto his stomach on the gurney, slapping the back of his legs to try to generate a vein. After multiple, repeated attempts, the IV execution personnel stated aloud that they could not “get anything.” With peripheral access unavailable, other IV execution personnel next attempted central venous access through Hamm’s right groin. Multiple times, they tried to insert a catheter into Hamm’s right groin, causing severe bleeding and pain.

“This went beyond ghoulish justice and cruel and unusual punishment,” 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. “It was torture. It was precisely the kind of torture that the UN Human Rights Rapporteurs had warned about to the Governor of Alabama.”

The execution was ultimately called off at approximately 11:27 p.m.; however, according to Harcourt, even after the execution was called off, the IV execution personnel suggested continuing with central venous access in the groin or trying elsewhere on his lower extremities. The Commissioner of the Alabama Department of Corrections, Jefferson Dunn, admitted that the execution team had not been able to achieve venous access, but did not think that was “a problem.” 

Hamm woke up on Friday morning bruised, punctured, and limping from the attempted execution. Harcourt visited with Hamm on Friday afternoon and says that he was limping badly and terribly sore, especially in the groin area.

“We had told all the federal courts, the governor, the governor’s general counsel, and commissioner and warden that any attempt at intravenous access was going to result in a botched execution, but everyone refused to give us the time of day,” says Harcourt. “We often talk about wrongful conviction, but the federal courts and the governor of Alabama have just invented ‘wrongful execution.’ This is an abomination and Alabama should immediately halt all lethal injection in the state.”  

Tomorrow, Harcourt will bring his medical expert, Mark Heath, M.D., an anesthesiologist and professor of medicine at Columbia University, to examine Hamm and document the puncture wounds and injuries from the attempted execution.

Heath had examined Hamm in September 2017 and concluded that “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.

Alabama argued instead, though, that Hamm had multiple peripheral access and was situated no differently than any other inmate in Alabama. Alabama had submitted affidavits from medical practitioners stating that there would be easy access into Hamm’s veins.

On Friday, Feb. 23, 2017, U.S. District Court Judge Karon Bowdre held an emergency conference to order Alabama to preserve evidence from the execution and allow Heath to conduct a full medical examination on Sunday with proper equipment, camera, and video. Bowdre had originally scheduled an emergency hearing for Monday, Feb. 24, 2017, but resolved all emergency matters at the conference Friday, given the planned examination on Sunday.

Convicted and sentenced to death in 1987 for the robbery-murder of a Cullman County motel clerk, Patrick Cunningham, Hamm has been battling cranial and lymphatic cancer for over three years. Treatment for the illness has compromised his veins, and Harcourt has argued since July 2017 that lethal intravenous injection would likely cause “cruel and needless pain,” according to papers filed by Harcourt, who has represented Hamm since 1990.

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Reporters with questions or interview requests can contact Bernard Harcourt directly:

Recommended reading

NYT op-ed by Bernard Harcourt, “Ghoulish Pursuit of Executing a Terminally Ill Inmate”

Professor Bernard E. Harcourt Argues Death Penalty Case Before 11th U.S. Circuit Court of Appeals

The Long Defense of the Alabama Death-Row Prisoner Doyle Lee Hamm

Posted on February 24, 2018

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