Confidential Settlement Leaves Questions About Alabama Execution Process Unanswered

One month after Alabama called off its two-and-a-half hour attempt­ed exe­cu­tion of Doyle Hamm, the state reached a con­fi­den­tial set­tle­ment agree­ment in which it agreed not to seek anoth­er exe­cu­tion date and Hamm’s attor­ney dis­missed his client’s pend­ing civil-rights lawsuit. 

In a March 27, 2018 press release, Columbia University law pro­fes­sor Bernard Harcourt, who has rep­re­sent­ed Hamm for 28 years, said the set­tle­ment was reached ​“after lengthy, fruit­ful dis­cus­sions with the Alabama Attorney General’s office.” But the set­tle­ment left unan­swered numer­ous ques­tions about what hap­pened dur­ing the failed exe­cu­tion and about the state’s secret execution protocol. 

In response, Alabama’s death-row pris­on­ers filed a motion in their on-going chal­lenge to the state’s exe­cu­tion pro­to­col seek­ing a fed­er­al court order to pre­serve all evi­dence from the attempt­ed exe­cu­tion, and sev­er­al lead­ing media orga­ni­za­tions have sought per­mis­sion to inter­vene in Hamm’s case to obtain access to infor­ma­tion that cur­rent­ly remains sealed. 

The con­fi­den­tial set­tle­ment came after Hamm’s attor­ney sub­mit­ted a med­ical report by a doc­tor who exam­ined Hamm three days after the failed exe­cu­tion. The report — the only pub­lic doc­u­ment describ­ing the cir­cum­stances of the exe­cu­tion attempt — indi­cates that exe­cu­tion per­son­nel unsuc­cess­ful­ly insert­ed IV nee­dles more than 10 times into Hamm’s feet, legs, and right groin, caus­ing bleed­ing in his groin, and like­ly punc­tur­ing his blad­der, caus­ing blood in his urine. 

After exe­cu­tion­ers failed for more than two hours to set an intra­venous exe­cu­tion line, Alabama Department of Corrections Commissioner Jeffrey Dunn called off the exe­cu­tion and held a news con­fer­ence in which he repeat­ed­ly assert­ed the state had fol­lowed its exe­cu­tion pro­to­col. ​“I wouldn’t char­ac­ter­ize what we had tonight as a prob­lem,” Dunn said. In the face of con­flict­ing reports about the attempt­ed exe­cu­tion, The Montgomery Advertiser, Alabama Media Group, and The Associated Press filed a motion to inter­vene in the law­suit to gain access to sealed documents. 

“Open gov­ern­ment is good gov­er­ment,” said Montgomery Advertiser Executive Editor Bro Krift. ​“There are few things the cit­i­zens of Alabama need to know more than how the state is executing someone.” 

Alabama does not dis­close its exe­cu­tion pro­to­col to the pub­lic nor does it allow the pub­lic to wit­ness the part of the exe­cu­tion in which prison per­son­nel attempt to insert the IV lines. The medi­a’s motion argued that, “[w]ithout access to the pro­to­col, it is impos­si­ble for the pub­lic to under­stand if the fail­ure was due to a prob­lem inher­ent in pro­to­col, or to some other cause.” 

Alabama con­tin­ues to pub­licly deny that any­thing went wrong in its failed attempt to exe­cute Hamm. On March 30, in response to motion to pre­serve evi­dence filed in the pris­on­ers’ law­suit, the Alabama Attorney General blamed the U.S. Supreme Court for the state’s fail­ure to exe­cute Hamm. Prosecutors wrote: ​“because the Supreme Court pre­vent­ed Defendants [the Alabama Department of Corrections] from begin­ning prepa­ra­tions until a mere three hours before the exe­cu­tion war­rant was set to expire, time ran out for Defendants and neces­si­tat­ed abort­ing the execution.” 

Also on March 30, Chief Judge Karon Owen Bowdre grant­ed the media group’s motion to inter­vene in Hamm’s case, but reserved judg­ment on whether to unseal the record. ​“The Press Movants claim an inter­est in this case because it cen­ters on a ​‘mat­ter of intense pub­lic inter­est: the method by which the State of Alabama exer­cis­es the pow­er to put peo­ple to death,’” Judge Bowdre wrote. ​“The court agrees.” 

In allow­ing the media orga­ni­za­tions to inter­vene, the court found that nei­ther Alabama pros­e­cu­tors nor Doyle Hamm ​“ade­quate­ly rep­re­sent” the inter­ests of ​“the public’s right of access to the records.”