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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Death Penalty Madness in Alabama

Alabama's death chamber
A man suffering from cancer strapped to a gurney after spending 30 years on death row in Alabama. An intravenous team probing him, jabbing him, for hours in an attempt to find a usable vein to administer the lethal, secret drug cocktail. Going into his groin a half-dozen times, puncturing his bladder, penetrating his femoral artery. Until, a little before the midnight deadline, they abandon the botched execution with its puncture-mark traces tattooed across the man’s legs and groin.

Doyle Lee Hamm, age 61, becomes one of the rare people to walk out of an execution chamber. “This was a bit of butchery that can only be described as torture,” his attorney, Bernard Harcourt, tells me.

Not all is rosy in Alabama, a state long prominent in the United States death belt, where these events unfolded last Thursday. The state was the darling of the world in December when Le Monde, among other leading global newspapers, gave Alabama a front page headline for defeating the ultraconservative Republican bigot and accused sexual predator Roy Moore and electing a Democrat to the United States Senate. But Alabama is a place where old habits die hard.

Corrections Commissioner Jeff Dunn was unmoved by the grotesque unexecution. “I wouldn’t necessarily characterize what we had tonight as a problem,” he said. That might just qualify, against stiff competition from the highest office in the land, as the dumbest statement of 2018.

This was an abomination foretold. Harcourt, who has been representing Hamm since 1990, had been arguing for months that Hamm’s case presented an unconstitutional risk of a “cruel and unnecessarily painful execution.” Hamm, convicted of the 1987 murder of a motel clerk, Patrick Cunningham, has advanced lymphatic cancer and carcinoma. He’s dying. An examination in September by a doctor from the Columbia University Medical Center found that Hamm had no usable veins and that “the state is not equipped to achieve venous access in Mr. Hamm’s case.”

So began a macabre dance characterized by an unseemly determination to execute Hamm. The Alabama Supreme Court set an execution date late last year. U.S. Chief District Judge Karon Bowdre of the Northern District of Alabama granted a stay on Jan. 31. After an emergency appeal to the 11th Circuit Court of Appeals, that stay was vacated on Feb. 13 and a medical examination ordered.

Court file photos showing Hamm's veins
The examination found that Hamm’s arms and hands were unusable but his legs and feet, or “lower extremities,” were workable. On Feb. 20, Bowdre ordered that the execution could proceed on Feb. 22. Then the 11th Circuit required that a doctor be present with ultrasound equipment. A final appeal to the Supreme Court was denied last Thursday evening, setting in motion the ghoulish proceedings.

To state the obvious, this is obscene. I won’t get into the merits of Hamm’s conviction here; suffice it to say there were oversights and misrepresentations. Nor will I dwell on the fact that under international law, 30 years on death row constitutes torture.

I oppose the death penalty on the ground that it’s barbaric and increasingly unworkable. It’s also irreversible in a world where human error is so inescapable as to disqualify such absolute judgment. Even if you are not an abolitionist, however, the Hamm case must give pause.

“This experience teaches us a deep fallacy in our justice system,” Harcourt says. “When federal courts so eagerly get into the business of trying to find novel ways to execute a man, when the most august judges get their fingers bloody in this way, I think it does an injustice to justice.”

Alabama has executed 61 people since the Supreme Court allowed executions to resume in 1976. United States Attorney General Jeff Sessions was long the grim reaper of Alabama, eagerly seeking executions when he was the state’s attorney general. In President Trump, Sessions has a strong capital-punishment ally. Trump tweeted “SHOULD GET DEATH PENALTY” for a New York terrorist suspect in November, one of more than a dozen tweets calling for the death penalty since 2012. He has hinted strongly that he thinks the death penalty is the way to solve America’s drug crisis. The president lusts for blood.

The country, however, is moving in another direction. The number of executions has fallen to 23 in 2017, from 98 in 1999. Illinois, Connecticut, New Mexico and Maryland abolished the death penalty in recent years. Over 20 companies, including Pfizer, have prohibited their products from being used for lethal injections.

Harcourt was moved to help Hamm after learning of the abject quality of legal protection afforded indigent defendants in capital cases. After the Supreme Court denied his appeal on Thursday, and the execution looked inevitable, Harcourt told me he had said to Hamm that, “I did everything I possibly could have done but had let him down and I apologized.”

Hamm, he said, tried to console his longtime attorney: “We did everything possible.”

It is now time, after Thursday’s lesson in the consequences of inhumanity, for Gov. Kay Ivey of Alabama to grant Hamm clemency and allow him to serve the rest of his life in prison.

Source: The New York Times, Op-Ed, Roger Cohen, February 27, 2018


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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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