Three Controversial Executions Turn Into A Commutation, An Execution, and an Execution Failure

Three states—Alabama, Florida, and Texas—pre­pared to car­ry out con­tro­ver­sial exe­cu­tions on Thursday, February 22, all sched­uled for 7 PM Eastern time, but by the end of the night, two had been halted. 

Less than an hour before his sched­uled exe­cu­tion, and after hav­ing said a final good-bye to his anguished father, Texas death-row pris­on­er Thomas ​“Bart” Whitaker (pic­tured, left) learned that Governor Greg Abbott had com­mut­ed his death sen­tence to life in prison. Minutes lat­er, Florida exe­cut­ed Eric Branch, despite undis­put­ed evi­dence that he had been uncon­sti­tu­tion­al­ly sen­tenced to death. He was pro­nounced dead at 7:05 p.m. And near­ing mid­night Central time, two-and-one-half hours after a divid­ed U.S. Supreme Court had giv­en Alabama the go-ahead to exe­cute ter­mi­nal­ly ill Doyle Hamm cor­rec­tions com­mis­sion­er Jeff Dunn called off the exe­cu­tion say­ing prison per­son­nel did not have ​“suf­fi­cient time” to find a suit­able vein in which to place the intra­venous exe­cu­tion line before the death warrant expired. 

For Texas, it was the first time in more than a decade and only the third time since the death penal­ty was rein­stat­ed in 1976, that any gov­er­nor had grant­ed clemen­cy to a con­demned pris­on­er. The Texas com­mu­ta­tion came after a unan­i­mous rec­om­men­da­tion by the parole board, sup­port from the only liv­ing vic­tim, Whitaker’s father, and var­i­ous state law­mak­ers. In explain­ing his grant of clemen­cy — the first time Gov. Abbott had com­mut­ed any death sen­tence — the Governor cit­ed the fact that Whitaker’s code­fen­dant, the trig­ger­per­son, did not get the death penal­ty, the vic­tim ​“pas­sion­ate­ly opposed the exe­cu­tion,” and Whitaker had waived any pos­si­bil­i­ty of parole and would spend the remain­der of his life in prison. The final-hour com­mu­ta­tion was relayed to Whitaker in the hold­ing cell next to the death cham­ber, as he was prepar­ing to be executed. 

Florida exe­cut­ed Eric Branch (pic­tured, left) despite the fact that a judge sen­tenced him death after two of his jurors had vot­ed for life and the jury had been told not to record the find­ings that would make Branch eli­gi­ble for the death penal­ty. Both of those prac­tices have now been found uncon­sti­tu­tion­al. In Hurst v. Florida, decid­ed in 2016, the U.S. Supreme Court reit­er­at­ed that a cap­i­tal defen­dan­t’s right to a jury tri­al includes the right to have a jury find all facts nec­es­sary for the state to impose the death penal­ty, and lat­er that year, the Florida Supreme Court declared that the Sixth Amendment and the Florida con­sti­tu­tion require jury sen­tenc­ing ver­dicts to be unanimous.

Alabama had been warned that, because of his ter­mi­nal can­cer and pri­or his­to­ry of drug use, Doyle Hamm’s (pic­tured, left) veins were not acces­si­ble and there­fore an attempt to exe­cute him via intra­venous injec­tion would be cru­el and unusu­al. After the U.S. Supreme Court issued a tem­po­rary stay at 6:00pm CT, fol­lowed by a full denial of a stay with dis­sents from Justices Breyer, Ginsburg, and Sotomayor around 9:00pm CT, Alabama start­ed prepar­ing to car­ry out Hamm’s exe­cu­tion. After more than two-and-a-half hours, the state called it off.

At a news con­fer­ence imme­di­ate­ly there­after, Commissioner Dunn repeat­ed­ly assert­ed the state had fol­lowed its exe­cu­tion pro­to­col, and said ​“I wouldn’t char­ac­ter­ize what we had tonight as a prob­lem.” Dunn was unable to describe what the state had been doing dur­ing the time that Hamm was being pre­pared for the lethal injec­tion and dis­missed ques­tions about failed attempts to set the IV lines say­ing he was not qual­i­fied to answer med­ical ques­tions. He said he could not tell reporters how long the med­ical per­son­nel had attempt­ed to estab­lish IV access because ​“I am not back there with the staff.”

Alabama keeps its pro­to­col secret, mak­ing it impos­si­ble to ver­i­fy the state’s asser­tions. Hamm’s attor­ney Bernard Harcourt, who — like all wit­ness­es — was not per­mit­ted to view the IV inser­tion por­tion of the exe­cu­tion, spec­u­lat­ed that prison per­son­nel could not find a vein and called the process “[s]imply uncon­scionable.” On the morn­ing of February 23, Harcourt filed an emer­gency motion say­ing that Hamm had ​“endured over two-and-a-half hours of attempt­ed venous access” and seek­ing a hear­ing to ​“estab­lish exact­ly what hap­pened” dur­ing that time frame. The fed­er­al dis­trict court sched­uled a hear­ing on the issue for Monday, February 26.

Although it is not uncom­mon for mul­ti­ple states to sched­ule exe­cu­tions on the same day, because of stays of exe­cu­tion or resched­ul­ing, it is rare to have three or more death war­rants still active on the day the exe­cu­tions are set to occur. States have car­ried out three or more exe­cu­tions on the same day 13 times since exe­cu­tions resumed in the United States in 1977, but have not done so since 2010.

Branch’s exe­cu­tion was fourth in the U.S. this year, the oth­er three car­ried out in Texas. Fewer than one-third of the 14 death war­rants sched­uled for January or February 2018 have been car­ried out. Four exe­cu­tion dates have been resched­uled; three war­rants were stayed because they inter­fered with on-going appeals; and there has been one com­mu­ta­tion, one reprieve, and one failed execution attempt.