Federal District Judge Grants Doyle Lee Hamm Stay of Execution

Professor Bernard E. Harcourt, who represents Mr. Hamm pro bono, successfully argued a constitutional claim of “cruel and unusual punishment.”

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New York, February 6, 2018—Federal district judge Karon O. Bowdre, chief judge of the United States District Court for the Northern District of Alabama, today issued a written opinion staying the execution of Doyle Lee Hamm scheduled for Feb. 22, 2018.

The ruling in the 30-year-old death penalty case followed a day-long hearing on Jan. 31 at the Hugo L. Black Federal Courthouse in Birmingham which included lengthy witness testimony, evidence, and legal arguments presented by Columbia Law School Professor Bernard E. Harcourt, who has represented Hamm pro bono now for 28 years. 

Hamm (pictured below in 1981), who was convicted and sentenced to death in 1987 for the robbery-murder of a Cullman County motel clerk, Patrick Cunningham, has been battling lymphatic cancer and carcinoma for over four years.

Bowdre issued a detailed and lengthy 25-page opinion, ultimately ruling that “based on the record as it currently exists, Mr. Hamm has shown a substantial likelihood of success on the merits, and the court finds that the execution date must be stayed pending an independent medical examination of Mr. Hamm."

Doyle Lee Hamm in 1981
Doyle Lee Hamm in 1981
A few days before last week’s evidentiary hearing, Judge Bowdre issued a writ of habeas corpus ad testificandum—“show us the body of the accused so that he may testify”— to compel Hamm’s presence at the hearing in federal court in Birmingham. Although he had already been transferred to death row at Holman Correctional Facility in Atmore, in southern Alabama, federal marshals complied with the judge’s orders and arranged for him to join Harcourt in court. Frail and weak from his cancer and deteriorating medical condition, Hamm sat silently at counsel table with one arm uncuffed from his waist shackles.

“Judge Bowdre’s opinion is stunning, and shows full command and comprehension of the medical issues,” Harcourt said. “It’s not only judicious, it’s also air-tight insofar as the judge found that there is a significant likelihood that Doyle Hamm will prevail and demonstrate a substantial risk of an unnecessarily painful and torturous execution if lethal intravenous injection is attempted given his history of cancer and cancer treatment and the present medical condition of his veins.”

Mark Heath, M.D., an anesthesiologist and professor of medicine at Columbia University who had visited Hamm in prison in Sept. 2017 to assess his medical condition, testified for several hours in camera, in the judge’s conference room, because the lethal injection protocol in Alabama is confidential and cannot be discussed in public. Heath explained to Judge Bowdre that due to the Hamm’s inaccessible veins, there was a high probability that intravenous lethal injection could cause Hamm to become paralyzed and consciously suffocate, leading to “an agonizing death.” 

Charles David Blanke, M.D., an experienced oncologist from Oregon who specializes in medical aid in dying, which is legal in Oregon, testified about the protocols for physician-assisted end-of-life, demonstrating the comparative humaneness, effectiveness, and reliability of the oral procedure—99.4% effectiveness, with onset of unconsciousness in about five minutes and death in about 25 minutes, far more reliable than a lethal IV injection.

According to data compiled by the Death Penalty Information Center, seven percent of lethal injections in the U.S. between 1890 and 2010 were botched.

(Left ro right) Nika Cohen ’18, Phoebe Wolfe ’18, Professor Bernard Harcourt, and Isadora Ruyter-Harcourt BC ’16
(Left ro right) Nika Cohen ’18, Phoebe Wolfe ’18, Professor Bernard Harcourt, and Isadora Ruyter-Harcourt BC ’16

Harcourt was accompanied at the hearing and assisted by his legal team, which included, present at the hearing, two third-year Columbia Law students, Nika Cohen ’18 and Phoebe Wolfe ’18, and two recent Columbia undergraduates, Isadora Ruyter-Harcourt BC ’16 and Egon Von Conway CC ’17. They presented a total of 45 exhibits for Hamm in contrast to the 11 exhibits for the state.

Harcourt also today filed a petition for clemency with the governor of Alabama, Governor Kay Ivey, asking for her mercy, which is receiving increasing international attention.

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Recommended reading:

Updates on the case of Doyle Lee Hamm

Professor Bernard E. Harcourt’s op-ed in the New York Times

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