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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…

Execution of Alabama inmate Doyle Lee Hamm called off

Doyle Lee Hamm
Doyle Lee Hamm survived his date with the executioner Thursday, as Alabama was unable to begin the procedure before the death warrant expired at midnight.

Hamm, 61, was convicted of killing Cullman hotel clerk Patrick Cunningham in January 1987. Recent appeals in his case involved the question of whether cancer had left him healthy enough to be executed without excessive suffering.

Thursday night's execution originally was set for 6 p.m. A temporary stay from the U.S. Supreme Court was lifted at about 9 p.m., leaving the state clear to proceed. But from that point, things moved slowly. It was 10 p.m. before media observers and other witnesses were transferred to Holman Correctional Facility.

Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented in lifting stay and consideration of certiorari - or review of the case. Justice Breyer respected denial but says "rather than develop a "constitutional jurisprudence that focuses upon the special circumstances of the aged," he would reconsider constitutionality of death penalty itself.

Once on site, they were kept in vehicles outside the actual death row facilities. Such waits are not unusual, but this one lasted well over an hour. Shortly before 11:30 p.m., Department of Corrections officials and guards could be seen conferring, though it was not immediately clear what was happening.

There's a recent precedent for late executions: That of Tommy Arthur, in May 2017, began only a few minutes before midnight, the time when Alabama's death warrants expire. Arthur's time of death actually was after midnight, but the warrants only specify that the process must begin before midnight.

Shortly after 11:30 p.m., officials began to ferry witnesses away from the prison. Reporters were told the execution had been called off because there was insufficient time to prepare.

Harcourt, now a professor of law at Columbia University, has represented Hamm since 1990. Among other efforts, he worked to illustrate extenuating factors in Hamm's life and alleged flaws in the prosecution.

A 2016 New Yorker article drew on Harcourt's research for a chilling summary of Hamm's early life: "Hamm grew up in northwest Alabama, the tenth of twelve children; his father worked as a carpenter and cotton picker, made his own moonshine, drank every day, beat his children with a switch, and was a frequent resident of the county jail (on charges of public drunkenness). Hamm's sister later described their childhood home as 'constant hell all the time.' She also recalled their father telling the children, 'If you don't go out and steal, then you're not a Hamm.' Growing up, Hamm flunked first grade, drank beer and whiskey mixed together, graduated to sniffing glue several times a day, quit school in the ninth grade, ingested Valium and Percocet and Quaaludes, watched his six older brothers all go to jail, and eventually acquired his own extensive rap sheet, including arrests for burglary, assault, and grand larceny."

Despite Harcourt's prolonged efforts, which have been the subject of criticism from at least one judge and the Alabama attorney general's office, in 2016 the U.S. Supreme Court refused to review the case. In December, the Alabama Supreme Court set a date for his execution.

Photos showing Doyle Lee Hamm's vein
By then Hamm had received partial treatment for cancer first diagnosed in 2014. The Alabama Attorney General's office has argued that the cancer is in remission. Hamm's supporters have said there are signs that it has returned and has caused his health to deteriorate to the point where his veins can't sustain the lethal injection process.

In 2018, the case bounced back and forth between Judge Karon O. Bowdre, U.S. Chief District Judge for the Northern District of Alabama, and the 11th Circuit Court of Appeals. In late January Bowdre granted a stay. The appeals court ruled she had gone too far in basing the stay on "a substantial likelihood of success" with an appeal. The correct standard, it said, was that a "significant possibility of success on the merits" was needed for a stay.

On Tuesday, Bowdre issued an order saying the execution could proceed, provided the state used veins in Hamm's lower extremities and did not attempt to use veins in his arms. Harcourt appealed that ruling; on Thursday, the 11th Circuit Court of Appeals upheld Bowdre's order.

"We conclude that the district court (Bowdre) did not abuse its discretion when it ruled that Hamm cannot show a significant likelihood that execution by intravenous injection would violate his Eighth Amendment rights," the 11th Circuit stated in its ruling to affirm Bowdre's order. "Hamm has two peripheral veins accessible for a lethal injection, and his central veins are likewise accessible for a lethal injection. Finally, the conditions rendering the central veins accessible in Hamm's case--the availability of ultrasound equipment and an advanced practitioner--exist here."

Thursday afternoon, Harcourt again asked the U.S. Supreme Court to consider the case and to grant a stay. The Alabama attorney general's office filed a response asking the court to reject that request, saying an independent medical examiner's report showed that, contrary to claims made on Hamm's behalf, the veins in his legs were suitable and his medical condition presented no obstacles to execution in "a constitutional fashion."

Hamm was one of three men scheduled to die Thursday evening in the U.S. At about 5:30 p.m., The Associated Press reported that Texas Gov. Greg Abbott had spared the life of Thomas "Bart" Whitaker, commuting his sentence to life without parole. Less than an hour later, it confirmed that Florida had executed Eric Scott Branch shortly after 7 p.m. Eastern time.

Source: al.com, Lawrence Specker, February 22, 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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