In a vic­to­ry for the media and advo­cates of open gov­ern­ment, a unan­i­mous three-judge pan­el of the U.S. Court of Appeals for the Eleventh Circuit ruled on March 18, 2019 that Alabama must dis­close key por­tions of its high­ly secre­tive lethal-injec­tion exe­cu­tion pro­to­col to the pub­lic. The Associated Press, the Montgomery Advertiser, and Alabama Media Group had sued for access to the pro­to­col, which came under intense scruti­ny in the wake of Alabama’s failed attempt to exe­cute Doyle Lee Hamm (pic­tured) in February 2018.

Hamm, who has ter­mi­nal can­cer, chal­lenged Alabama’s exe­cu­tion pro­to­col. He argued that his veins had been com­pro­mised by his ill­ness and exe­cut­ing him by lethal injec­tion would con­sti­tute cru­el and unusu­al pun­ish­ment. The courts per­mit­ted the exe­cu­tion to pro­ceed after Alabama said it would not attempt to insert an IV-line in Hamm’s arms or upper extrem­i­ties. On February 22, 2018, exe­cu­tion­ers tried and failed for two-and-one-half hours to set an intra­venous exe­cu­tion line. Alabama Department of Corrections Commissioner Jeffrey Dunn called off the exe­cu­tion but told the media, ​“I wouldn’t char­ac­ter­ize what we had tonight as a prob­lem.” Dunn repeat­ed­ly assert­ed the state had fol­lowed its exe­cu­tion pro­to­col and claimed the exe­cu­tion had been halt­ed only because the late court rul­ings in the case did not leave cor­rec­tions per­son­nel suf­fi­cient time to exe­cute Hamm before his death war­rant would have expired. Hamm filed a fed­er­al civ­il-rights law­suit seek­ing to pre­vent Alabama from attempt­ing to exe­cute him a sec­ond time. As part of that suit, he filed a doctor’s report — the only pub­lic doc­u­ment describ­ing the cir­cum­stances of the exe­cu­tion attempt — that indi­cat­ed exe­cu­tion per­son­nel had 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. Shortly there­after, Hamm and the state reached a con­fi­den­tial set­tle­ment in which Alabama agreed not to seek anoth­er exe­cu­tion date, the court records of the case would be sealed, Hamm would dis­miss his law­suit, and Hamm and his lawyers would not dis­close any addi­tion­al infor­ma­tion about the case. In the after­math, the three media out­lets filed a motion to gain access to the pro­to­col and exe­cu­tion records. A fed­er­al dis­trict court ruled in their favor in May 2018.

Alabama appealed that rul­ing, argu­ing that the lethal-injec­tion pro­to­col had nev­er been for­mal­ly filed with a low­er court, and there­fore was not a court record sub­ject to pub­lic access. The appeals court reject­ed that argu­ment, with Judge Charles Wilson writ­ing: ​“Alabama’s lethal injec­tion pro­to­col may not have been for­mal­ly filed under the rushed time­line of Hamm’s approach­ing exe­cu­tion, but the pro­to­col con­sti­tutes a judi­cial record sub­ject to the com­mon law right of access because it was sub­mit­ted to the dis­trict court to resolve dis­put­ed sub­stan­tive motions in the lit­i­ga­tion, was dis­cussed and ana­lyzed by all par­ties in evi­den­tiary hear­ings and argu­ments, and was unam­bigu­ous­ly inte­gral to the court’s res­o­lu­tion of the sub­stan­tive motions in Hamm’s as-applied chal­lenge to the pro­to­col.” The deci­sion also addressed the impor­tance of trans­paren­cy to the pub­lic, say­ing ​“Judicial records pro­vide grounds upon which a court relies in decid­ing cas­es, and thus the pub­lic has a valid inter­est in access­ing these records to ensure the con­tin­ued integri­ty and trans­paren­cy of our gov­ern­men­tal and judicial offices.”

Alabama’s exe­cu­tion secre­cy has been at the core of sev­er­al oth­er exe­cu­tion con­tro­ver­sies. In December 2016, exe­cu­tion wit­ness­es report­ed that Ronald Smith clenched his fists and gasped repeat­ed­ly for near­ly fif­teen min­utes. After the exe­cu­tion, Dunn told the pub­lic only that the state had ​“fol­lowed [its] pro­to­col.” State offi­cials lat­er refused to pro­vide any doc­u­men­ta­tion about the exe­cu­tion. In February 2019, late dis­clo­sure of its secret pro­to­col pro­vi­sion man­dat­ing that a Christian chap­lain — and no oth­er reli­gious advis­er — be present in the exe­cu­tion cham­ber led to the con­tro­ver­sial exe­cu­tion of Muslim pris­on­er Domineque Ray with­out afford­ing him access to an imam at the time of his execution.

(Court: Alabama can’t keep its lethal injec­tion method secret, Associated Press, March 19, 2019; Kayla Goggin, Alabama Must Disclose Lethal-Injection Protocol, Courthouse News Service, March 18, 2019.) Read the Eleventh Circuit’s deci­sion. See Lethal Injection and Secrecy.

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