In Response to Court Order, Alabama Releases Heavily Redacted Execution Protocol

Under court order, Alabama has released for the first time a copy of the state’s previously confidential execution protocol. The 17-page document—filed on October 16, 2019 in the U.S. District Court for the Northern District of Alabama federal court —purports to detail “the responsibilities and procedures for the reception of a condemned inmate, for confinement, and for execution and day of execution preparation” as of April 2019.

The heavily redacted protocol identifies the drugs used by the state in executions and outlines the execution process but contains no information on the source of execution drugs or the titles or qualifications of prison personnel involved in carrying out the execution. The document produced to the court also blacks out in its entirety the information prison personnel are to record in the log of each execution.

The federal court ordered the Alabama Department of Corrections to release the protocol in response to a lawsuit brought by three media outlets—the Associated Press, The Montgomery Advertiser, and the Alabama Media Group. The media outlets sought public disclosure of the protocol and other judicial records relating to the state’s failed attempt to execute Doyle Lee Hamm in February 2018.

Corrections officials and Hamm had reached a confidential settlement agreement of his challenge to the state’s execution process after Hamm submitted to the court a graphic medical report that detailed the execution team’s failure for nearly 2½ hours to set an intravenous line to carry out his execution. After calling off the execution, Corrections Commissioner Jeffrey Dunn told the media he “wouldn’t characterize what we had tonight as a problem,” saying only that the state had complied with its execution protocol. As part of the settlement of Hamm’s lawsuit, the parties had agreed to seal from the public the court records in the case.

In May 2018, Chief Judge Karon Owen Bowdre found that “how Alabama carries out its executions … [is] a matter of great public concern,” and ordered the state to disclose the protocol to the media outlets. The public’s “common law right of access to the sealed records,” she said, outweighed Alabama’s arguments to keep the records secret. In March 2019, the U.S. Court of Appeals for the Eleventh Circuit upheld Bowdre’s decision. In an opinion for a unanimous three-judge panel, Judge Charles Wilson wrote that the contents of the protocol were part of the court record of the case and “the public has a valid interest in accessing these records to ensure the continued integrity and transparency of our governmental and judicial offices.”

Death Penalty Information Center Executive Director Robert Dunham criticized the lack of detail in the protocol released to the public. “[The document] lacks critical information and redacts other important information that leaves Alabama executions secret and unaccountable,” Dunham said.

Alabama’s lack of transparency in its execution process has been at the core of multiple 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. In arguing that its execution process did not discriminate on the basis of religion, the Alabama Attorney General’s office told the federal courts: “Like any other inmate, Ray has been and will be given opportunities to speak with his spiritual adviser, including up to the moment that he is taken into the chamber.” However, Ray’s lawyers later reported that Alabama had not honored that promise and that Ray’s imam had been asked to leave three hours before the execution.

In June 2019, the U.S. Supreme Court ordered the unsealing of redacted court pleadings related to Alabama’s May 31, 2019 execution of Christopher Price. In a 2:00 a.m. ruling on April 12, a bitterly divided Court had voted 5-4 to lift a stay of execution that would have permitted Price to litigate his challenge to the constitutionality of the state’s drug protocol.