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In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

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To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

The Decades-Long Defense of an Alabama Death-Row Prisoner Enters a Final Phase

Doyle Lee Hamm has been on death row in Alabama since 1987.
When he was growing up, Bernard Harcourt often heard stories about the man who had saved his father’s life, in 1940, after Germany invaded France. At the time, his father, who was Jewish and born in Paris, was twelve years old. Harcourt’s father, aunt, and grandmother fled in a boat to Portugal with the help of a man named Aristides de Sousa Mendes. The story left a deep impression on Harcourt, who says he grew up feeling that his own life “was in some way made possible by someone’s courage” and “that I, too, owed that back to others.”

Harcourt, now fifty-four, earned a law degree and a Ph.D. in political science from Harvard, wrote six books, edited eight more, and became a professor at Columbia Law School. He also, for the past twenty-seven years, has been representing a prisoner on Alabama’s death row named Doyle Lee Hamm. Soon after finishing law school, Harcourt moved to the South and began working alongside the attorney Bryan Stevenson, who had just started a project providing lawyers to death-row prisoners in Alabama. In 1990, in a small, cell-like visitation room at Donaldson Correctional Facility, Harcourt met Hamm. Hamm’s crime: shooting a motel clerk in the head during a robbery.

Hamm had already been sentenced to be executed, but Harcourt was determined to do all he could to insure that this never happened. Over the next three years, Harcourt collected hundreds of pages of documents describing Hamm’s life before the murder, showing, for example, that Hamm’s father had been an alcoholic with an extremely long rap sheet; that all of his six older brothers had rap sheets, too; that Hamm had been a severe drug addict who had started inhaling glue and drinking whiskey at an early age; and that he had a “significant history of head injuries” and probable “brain damage.” Harcourt also discovered that, in 1977, Hamm had been arrested for a robbery that he had not committed and spent five years in prison. Yet, after Hamm was found guilty of the motel murder, during the penalty phase of his trial, prosecutors had told the jury about this robbery conviction to try to persuade them to vote for a death sentence.

After appealing Hamm’s sentence to the Alabama Supreme Court and the U.S. Court of Appeals for the Eleventh Circuit, Harcourt attempted, in 2016, to persuade the U.S. Supreme Court to review Hamm’s case. That year, I wrote a story about Harcourt’s decades-long defense of Hamm. “If I hadn’t had Bernard, I would have been executed,” Hamm told me at the time, pausing on the phone line. “I believe I would’ve been executed ten years ago.”

Last Wednesday, the day after Doug Jones defeated Roy Moore in the U.S. Senate race, Harcourt’s cell phone rang with a call from Alabama. He didn’t recognize the number, but he answered anyway. The man on the line was very brief, and by the time the call ended Harcourt was very shaken. Afterward, he found a voice mail on his office phone from the same man: “Hey, Mr. Harcourt. Good morning. My name is Leale McCall. I’m a staff attorney at the Alabama Supreme Court clerk’s office. I was calling about Mr. Doyle Lee Hamm. The Supreme Court has set an execution date for Mr. Hamm for February 22, 2018,” he said. “An order will be going out. If you’ve got any questions, you’re welcome to call me.”

For twenty-seven years, Harcourt had been able to keep the state of Alabama from executing his client, but now, in the end, it seemed likely that the state would prevail. For the last several weeks, Harcourt had been speaking with Hamm every day or two to make sure that Hamm was getting the medical care he needed. “He’s literally been seeing doctors,” Harcourt said. “They’re trying to treat his cancer at the same time the state is trying to execute him.”

"If prison officials try to execute Hamm with their usual method of lethal injection, “he will suffer an agonizing, bloody, and painful death,” he wrote. “Mr. Hamm’s serious and deteriorating medical condition poses an unacceptable risk that he will experience significant pain.” Harcourt urged state officials to consider an “oral injection of a lethal drug cocktail” instead of an intravenous injection."

Hamm is sixty years old and has cranial and lymphatic cancer. The U.S. Supreme Court declined to review his case, and, this past September, Harcourt brought an anesthesiologist who teaches at Columbia to Alabama to examine Hamm. The doctor found that he had virtually “no accessible veins” in his arms and legs due to years of intravenous drug use. Executing Hamm by lethal injection will almost certainly require “central vein access”—a challenging procedure under any circumstances, but one that would likely be much more complicated in Hamm’s case, due to his lymphatic cancer. Relying on the doctor’s findings, Harcourt filed papers in court requesting that the court appoint a special master to “oversee a proper medical examination” of Hamm before executing him.

After getting the call from Alabama, Harcourt left a message for Hamm with the warden’s office at Donaldson prison. Hamm called him back a few minutes later from a phone in the prison’s day room. After Hamm hung up the phone, he told nearby death-row inmates his news. “Everybody was quiet and telling me, ‘We’re sorry, man, that this happened, and we hope everything turns out alright,’ ” Hamm recalled.

Later that afternoon, Harcourt filed yet another piece of litigation on Hamm’s behalf, focussing on the challenge of obtaining “central venous access.” If prison officials try to execute Hamm with their usual method of lethal injection, “he will suffer an agonizing, bloody, and painful death,” he wrote. “Mr. Hamm’s serious and deteriorating medical condition poses an unacceptable risk that he will experience significant pain.” Harcourt urged state officials to consider an “oral injection of a lethal drug cocktail” instead of an intravenous injection. Harcourt hopes that somehow, in the weeks ahead, he will be able to find a way to save his client from the death chamber. If not, he will travel to Alabama once again, this time to witness the event that he has spent nearly three decades fighting to stop: the execution of Doyle Lee Hamm.

Source: The New Yorker, Jennifer Gonnerman, December 19, 2017. Jennifer Gonnerman joined The New Yorker as a staff writer in 2015. She is the author of “Life on the Outside: The Prison Odyssey of Elaine Bartlett.”


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