ATMORE, Ala. — In February, Doyle Lee Hamm became the fourth person in more than 70 years to walk away from an execution attempt in the United States.
Alabama Department of Corrections officials called off his lethal injection attempt at Holman Correctional Facility shortly before midnight on Feb. 22. ADOC officials said it was a time issue — Hamm’s death warrant expired at midnight — but Hamm’s legal team say multiple attempts to set an IV in his lower legs and groin led to extreme pain, possible infection and psychological distress.
Hamm believes Alabama lost its chance to kill him: His lawyer argues a second execution attempt would violate the constitutional ban on cruel and unusual punishment and the double jeopardy clause of the Fifth Amendment.
Convicted of killing Cullman motel clerk Patrick Cunningham in 1987, Hamm had previously argued his veins were too damaged to access because of a host of medical issues.
“For seven months, I warned everyone that attempting intravenous lethal injection was going to be a bloody mess,” Hamm’s lawyer Bernard Harcourt said. “Until Feb. 22, this case was what was called a method of execution challenge. … On Feb. 22, when everyone ignored my warnings, the case changed completely in its character. It’s now a case about not being able to execute a second time because of double jeopardy.”
Hamm’s lawyer said recently that both parties have reached a settlement and Alabama would not seek a second execution date. The Alabama Attorney General’s Office declined to comment on whether or not Hamm was still considered a death row inmate.
But the question of whether a second execution attempt is possible still remains.
Hamm is one of four American men to walk out of the execution chamber since the mid-1900s, and one of only two still living.
“No court has held that subsequent execution attempts violate the double jeopardy clause,” said Phyllis Goldfarb, a George Washington University law professor. “But it is a viable argument. His attorney is arguing that it was foreseeable the execution attempt itself would create a substantial risk of severe pain, considering his physical and medical condition.”
After a medical evaluation, a judge in 2017 ruled Hamm’s upper limbs were off limits: Specially trained technicians would need ultrasound guidance to access veins in his arms and hands.
ADOC agreed to set an IV in his lower extremities.
A doctor’s report commissioned by Hamm’s lawyer found Hamm was punctured at least 11 times in his lower legs and groin. The procedure was called off after Hamm began bleeding from the groin, according to the report, and prison workers had to support Hamm as he left the execution chamber. Pictures in the medical report show heavy severe bruising, and the report states entry wounds in Hamm’s groin overlapped so closely it was difficult to count the exact number.
ADOC declined a Montgomery Advertiser request to interview Alabama Corrections Commissioner Jeff Dunn, but a spokesman said ADOC disagrees with Harcourt’s claims about the execution procedure.
Precedent for subsequent execution attempts is extremely rare, said Deborah Denno, a Fordham University law professor who has studied lethal injection procedures nationwide.
For a time in the middle of last century, death traveled around Louisiana on a regular parish-to-parish circuit. The state’s electric chair, dubbed “Gruesome Gertie,” relied on courthouses and parish jails as temporary execution chambers.
In St. Martinville’s parish jail, 17-year-old Willie Francis, convicted of the murder of a local pharmacist, waited to be strapped into Gertie.
Typically, an official executioner and the Angola prison warden operated Gertie, but they were called away for an emergency meeting the day of Willie’s execution.
“In their place, the warden sent a prison trusty and an inmate to St. Martinville to execute Willie Francis,” said Gilbert King, author of “The Execution of Willie Francis.” ”Spectators at the scene observed the two men drinking and passing a flask as they set up the chair.”
On May 3, 1946, Francis was given last rites before the trusty flipped the switch. His body “tensed and stretched,” according to eyewitness affidavits filed with the U.S. Supreme Court, and the chair bucked on the floor.
But Francis wasn’t dying.
“I heard the one in charge yell to the man outside for more juice when he saw that Willie Francis was not dying, and the one on the outside yelled back he was giving him all he had,” Sheriff Harold Resweber testified. The attempt was quickly called off.
Louisiana moved to set a new execution date days away, but a local lawyer stepped in to fight an appeal.
“He felt that a botched execution was a sign from God, it was wrong to send this kid back to the chair,” King said.
The case reached the U.S. Supreme Court, where justices voted 5-4 to allow Louisiana a second attempt at killing Francis. The court held that the chair’s failure was an unintentional mistake. During Francis’ appeals, the Louisiana legislature amended its electrocution statute to restrict who could legally operate the chair.
In a second appeal, Willie’s lawyers argued the amendment proved the state admitted to the incompetence of the execution team and amounted to confessing to an error.
But the Supreme Court denied a petition for rehearing, and Francis was executed on May 9, 1947.
“Legal issues around execution methods tend to raise questions about the morality of the death penalty generally — whether the state should be in the business of doing this to people,” Goldfarb said. “Issues about whether a certain execution method is cruel and unusual punishment tend to raise questions about whether the death penalty is cruel and unusual punishment. They tend to be proxy for each other, so judges don’t feel they can pass judgment on the lawfulness of the death penalty generally.”
Six decades later, the Francis v. Resweber decision was cited in the Ohio appeal of Romell Broom.
Broom was scheduled to be executed in September 2009 for the 1984 kidnapping, rape and murder of a 14-year-old girl. Ohio prison officials spent nearly two hours trying to locate a suitable vein, puncturing Broom at least 18 times before the prison warden called off the attempt.
Broom’s lawyers fought against a second execution date, arguing it would amount to cruel and unusual punishment and double jeopardy.
But Ohio’s Supreme Court found that setting an IV is prep for an impending execution, not part of the execution itself. An execution can’t begin until “lethal drugs flow through the tubes,” the court found. The U.S. Supreme Court in 2016 declined to hear Broom’s challenge to a second injection attempt.
The Ohio Supreme Court in 2017 set a new execution date for Broom in June 2020. Broom continues to appeal his case.
In December 2017, Ohio called off another lethal injection attempt after officials were unable to find suitable veins in Alva Campbell, an inmate convicted of killing a teenager in 1997 while on parole for another murder. Both Campbell and the state had documented concerns about the suitability of Campbell’s veins.
Campbell died of natural causes in his cell March 3.
“When they keep on making the same mistake, when they had an expert saying Hamm was not physically able to handle these injections, that’s not an unintended accident. That’s extreme reckless disregard for the inmate,” Denno said.
Broom, Campbell and Hamm are the most recent known cases to leave the execution chamber alive, but death penalty scholars say lethal injection has seen a host of problems since its adoption as a modern form of executions.
“Lethal injection, when it doesn’t go awry, looks like a medical, sanitized death,” said Goldfarb.
There’s controversy if that’s the case, Goldfarb said. One of commonly used drugs is a paralytic, so though the outside effect is of someone falling asleep, inmates could simply be unable to express pain.
In Alabama, Ronald Bert Smith, executed in 2016, gasped and coughed for 13 of the 34 minutes it took to execute him. Last year, Torey McNabb grimaced and lifted his arm off the gurney 20 minutes after his execution had begun.
“It might have protected those who had to participate in the execution and those who had to witness the execution more than it protected the inmate,” Goldfarb said.
Research estimates some seven percent of lethal injection in the country have been botched in the process, though most are ultimately successful in killing inmates.
Lethal injection has faced recent legal and logistical challenges in Alabama and across the country, particularly over the use of the sedative midazolam. American and European drug manufacturers in recent years have begun blocking the use of their products in lethal injections.
Older forms of execution are back on the table, Goldfarb said, as states grapple with lethal injection issues.
In 2015, Utah resurrected the firing squad. Last week, Oklahoma announced it would replace lethal injection with gas inhalation, a method known as nitrogen hypoxia.
Though Oklahoma has struggled to obtain execution drugs, Department of Corrections Director Joe M. Allbaugh on Friday also cited difficulties with setting IVs in inmates, calling Hamm’s execution attempt “inhumane.”
In Alabama, a bill that would allow death row prisoners to choose an execution by nitrogen has passed the Legislature. Bill sponsor Sen. Trip Pittman, R-Montrose, has called it “more humane” and “less invasive.”
Nitrogen hypoxia has never been used in a U.S. execution, despite two other states who have approved it as an alternate method. Proponents say it’s safe, painless and easily available on the commercial market. Opponents argue it’s understudied and would require unethical experimentation before it could be used.
Pittman’s bill allows for execution by nitrogen hypoxia if lethal injection is “held unconstitutional or otherwise becomes unavailable.”
For Harcourt, though, the time has passed for alternate execution methods. A U.S. District Court judge has set a status conference for July 18 with a pretrial conference tentatively set for December 2018.
“The state had its bite at the apple,” Harcourt said. “Under the Eighth Amendment and double jeopardy, those grounds would bar any other execution at this point. The case has changed.”
This article is an Associated Press member exchange feature.