The Barbarism of Alabama’s Botched Execution

On the night of February 22, the executioners strapped Doyle Lee Hamm to the lethal injection gurney in Alabama’s execution chamber. Two men in scrubs began to work on each side, on his left and right legs and feet, sticking needles into his flesh and bones, pushing and pulling them out repeatedly, trying to find a usable peripheral vein, mashing and rolling the surrounding tissue for over thirty minutes, causing excruciating pain. 

After working five different sites—two in the left ankle, two in the right calf, another in the right ankle—two other executioners entered the room, one carrying an ultrasound device. She lathered gel on his groin, while the other began inserting multiple needles into his groin and pelvis, with repeated jabbing movements, hitting deep into the retropubic area. Blood began gushing out and soaked the pad underneath him. Suddenly sharp pains jolted Doyle Hamm, and he began to pray the executioners would just get it over with so that he could die quickly.

Only a few feet away, three reporters and four “witnesses” were detained in vehicles under a secret execution protocol that prevented them from seeing or knowing what was going on inside the execution chamber. After more than an hour without any word, it became obvious that something was deeply wrong. As Doyle Hamm’s attorney, I pleaded with the prison guard to be allowed to speak with the warden to stop Alabama’s death penalty madness, to no avail. Another hour passed, and then some. Finally, at 11:27 PM, the prison guard informed us that the execution was over, that Doyle Hamm was alive, and that we would be escorted off prison grounds.

For seven months, I had warned officials in Alabama—from Governor Kay Ivey and her general counsel and his lawyers, to the Alabama Commissioner of Corrections, the wardens at Holman and Donaldson prisons, a federal district judge in Birmingham, and a federal appellate panel of the Eleventh Circuit—that Doyle Hamm had no accessible veins. I had even proposed an alternative method of execution by oral lethal injection, but the state refused.

Doyle Hamm had been diagnosed with large-cell lymphoma cancer and B-cell carcinoma four years earlier, in February 2014. The cancer and the treatment he received back then resulted in two serious medical conditions that interfere with IV lethal injection: deeply compromised veins and lymph-node abnormalities. One of the best anesthesiologists in this country, Dr. Mark Heath of New York-Presbyterian Hospital and Columbia University, with decades of daily experience placing catheters into veins to obtain anesthesia in open-heart surgeries, had documented Hamm’s medical condition and his compromised veins.

But no one listened—except Justices Ruth Bader Ginsburg and Sonia Sotomayor, who dissented from the Supreme Court’s denial of a stay just moments before the torture began.

Doyle Hamm, now sixty-one, had spent thirty years on Alabama’s death row anticipating this execution. Convicted in 1987, along with two accomplices, of the late-night robbery-murder of Patrick Cunningham, a clerk working the midnight shift at the Anderson Motel in Cullman County, Doyle Hamm had been swiftly sentenced to be “executed by electrocution” by a jury vote of eleven to one. In 2002, Alabama adopted a supposedly “more humane” method of execution: lethal injection. But it hardly proved more humane.

What happened in Alabama on February 22 was barbaric, and because it was entirely avoidable, it was also deliberate in its barbarism. A week before the execution, a secret doctor appointed by the federal court in Birmingham had conducted an ultrasound on Doyle Hamm, and detected abnormal lymph nodes in his right groin. Instead of avoiding those lymph nodes, the executioners tried to find a vein on that side of the groin. Hamm, remarkably, survived the ordeal, but in the botched and bloody mess that resulted, the executioners likely punctured his bladder or femoral artery, causing a large hematoma and bruising down his leg, deep, long-lasting pain in his groin, blood in his urine, a severe limp, and a lymphatic infection. 

When Doyle Hamm’s torture was over, Alabama’s Commissioner of Corrections, Jefferson Dunn, held a closed-door press conference for the three reporters who had been kept out, and related how the execution team had spent a couple of hours trying to achieve venous access, without success. Dunn added, “I wouldn’t necessarily characterize what we had tonight as a problem”—a remark that Roger Cohen of The New York Times described “as the dumbest statement of 2018.”

The cruelty of what happened to Hamm that night is shocking, but consistent with a long tradition of barbaric executions in Alabama that stretches back to the innumerable extrajudicial lynchings that the Equal Justice Initiative in Montgomery, Alabama, is only now beginning to memorialize. Capital punishment by judicial means scarcely has a better record, thanks to the use of grotesque technologies like the electric chair and the gas chamber to kill by burning and asphyxiation. Every new “humane” way of killing—the guillotine, the rope, the chair, the gurney, the gas chamber—turns out, ultimately, to be as shockingly medieval as the last. The task of finding usable veins—in this case, on a cancerous, frail, and prematurely aged body—is now revealed as merely the latest chapter in this ghoulish history.

I fear that this country has slipped into casual brutality and callous habits of mind, by which we are inured to such punishments, unable to judge any more what is “cruel and unusual” about them. In post-September 11, 2001, America, torture was normalized by the use of waterboarding, mock executions, sleep deprivation, and confinement in coffin-sized boxes at American “black sites” and prisons abroad. Even after the detailed and harrowing 2014 Senate’s CIA Torture Report, no one who held any position of responsibility has ever been called to account. More recently, President Donald J. Trump campaigned on a promise to refill Guantánamo, embracing waterboarding and “worse.” Last weekend, he called for the death penalty for drug-dealers.

Doyle Hamm is the person who has come closest to death without actually dying in the history of execution by lethal injection in the US, subjected to multiple attempts at both peripheral and central venous access. But no one should be under any illusion that his torturous execution was an unfortunate aberration. It is simply the last in a long line of botched lethal injections over recent decades. Since 1985, there have been some two dozen reported cases in which executioners have struggled to find a usable vein, in Texas, Arkansas, Virginia, Georgia, Indiana, and, most recently, in Ohio. There, in Romell Broom’s case in 2009, and in Alva Campbell’s case in 2017, the procedure was so obviously reckless and inhumane that Ohio called off the executions.

In other states that have suffered botched executions—in Oklahoma, after the 2014 debacle involving Clayton Lockett, and in Florida in 2006 after the Angel Nieves Díaz horror—the state leadership called a moratorium on lethal injection and empaneled an independent commission to investigate. In the latter case, Florida’s then governor, Jeb Bush, ordered a complete review of “the method in which the lethal injection protocols are administered by the Department of Corrections.”

Yet, in Doyle Hamm’s case, Alabama does not even recognize that it has a problem. We have had only silence from Governor Kay Ivey and obfuscation from Commissioner Dunn.

It is time for the rest of us to break silence: the governor should place a moratorium on lethal injection and order an immediate full inquiry by an independent commission into the bungled execution of Doyle Hamm. Equally important, the governor should disclose Alabama’s hitherto secret execution protocol so that the public and qualified experts can assess the state’s method of administering the death penalty. I have seen this protocol under a confidentiality agreement with the Alabama Attorney General—and am therefore under a gag order—but what I can say is that the protocol does not pass muster. The public and the courts need to see it. Whatever one’s position on capital punishment, Americans can surely agree that no one should be tortured to death.

Source: The New York Review of Books, Bernard E. Harcourt, March 13, 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