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.