The Death Penalty and the Terminally Ill – What Happens After a Botched Execution?

Photo Credit: usnews.com

By: Suzanne Norman

Member, American Journal of Trial Advocacy  

On February 22, 2018, following 31 years of legal battles, Lee Doyle Hamm was sentenced to death by a Cullman County jury.[1] The State of Alabama attempted to administer its combination of lethal drugs to Hamm, but doctors were unable to successfully locate a vein to insert the needle before the attempt was called off.[2] After the United States Supreme Court lifted a temporary stay that allowed for the execution of Hamm, the people tasked with administering the drugs to Hamm attempted at least 11 times to locate a vein that would allow the drugs to be introduced to Hamm’s system, leaving Hamm bruised and bloody.[3]

A Multi-State Dilemma

Hamm, 61, was convicted and sentenced to death for the murder of Patrick Cunningham in 1987.[4] Hamm’s attorneys maintained throughout the proceedings leading up to the attempted execution that Hamm’s veins would be too difficult to access to administer the injections due to his battle with lymphatic cancer and drug use prior to his conviction.[5] Despite a medical report by an anesthesiologist from Columbia University Medical Center determining that the effects of the cancer left Hamm “with no usable veins in his arms and legs” and that the “lymphatic cancer was likely to interfere with any attempt to utilize his central veins,” the Alabama Supreme Court set a date for Hamm’s execution.[6]

Similar to Hamm’s situation unfolding in Alabama, an Ohio inmate, Alva Campbell, whose failing health precluded a successful execution in 2017, was set to try the process again in 2019.[7] In Ohio, the Department of Rehabilitation and Correction faced the same issue of an inability to find a viable vein to administer the lethal injection of drugs to an individual.[8] While awaiting the reset execution date, Campbell was found unresponsive in his cell.[9] According to his ex-wife, Campbell died of natural causes, and she stated that it was “probably better” he died that way to avoid another failed execution attempt.[10] Because of his passing, courts will not be afforded the opportunity to determine what the next legal step for Campbell would have been, which could have possibly provided guidance for both prosecutors and defense attorneys in future cases.[11]

Second Execution Attempt: Double Jeopardy Violation?

Hamm’s attempts to prevent the state from administering the lethal injection a second time will likely be an uphill battle to win.[12] Other states that have encountered the argument have successfully defended the practice of second tries from double jeopardy attacks by defense attorneys.[13] In the case of Romell Broom, the Ohio Supreme Court had to determine whether a second attempt to execute Broom after an initial failed attempt violated the inmate’s Fifth Amendment protections.[14] In its reasoning, the court held that double jeopardy would not take effect unless the lethal drugs had actually been administered, at least in part, before the execution was called off.[15] The Supreme Court of the United States denied certiorari in this case, ultimately leaving the issue to individual states to decide how to handle such cases.[16] Therefore, it is likely prosecutors from Alabama will point to cases like Broom’s in order to justify a second execution attempt of Hamm and argue that no Constitutional violation has occurred because no lethal drugs were actually administered to him.

Eighth Amendment Challenges are not New

The death penalty in the United States is no stranger to conflict among medical experts, constitutional experts, judges, lawyers, and citizens. In 1972, the Supreme Court of the United States in Furman v. Georgia[17] declared that the “carrying out of the death penalty . . . constitute[s] cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.”[18] After this decision, states revised their jury guidelines and enacted legislation to circumvent the U.S. Supreme Court’s objections to the death penalty.[19] Even so, it continues to be noteworthy that two Justices in Furman concluded that not only was the current manner of application of the death penalty unconstitutional but also that the death penalty itself was “incompatible with the evolving standards of decency of a contemporary society – a view that prevails in other nations today.”[20] Over three decades later, the United States remains an outlier in its imposition of the death penalty, particularly among North American countries.[21]

Today, individuals on death row attempting to challenge the death penalty may challenge the constitutionality of the method of execution, which requires suggesting an alternative method of execution that would not constitute cruel and unusual punishment.[22] For example, Hamm suggested he be executed via oral injection, but due to the specific drugs Alabama currently uses in its executions, an oral injection is currently unavailable.[23] The Eleventh Circuit has previously held that not only must the alternative exist, it must also be an alternative that is presently available to the state.[24] Hamm’s attorneys did not address any other alternatives in the event his veins are inaccessible at the time of any subsequent execution attempts.[25]

The Current Position of the Supreme Court

Although the topic of capital punishment is discussed frequently, the Supreme Court of the United States tends to tailor decisions regarding the constitutionality of the death penalty in an “extremely limited” manner.[26] Avoiding a ruling on generalities of the death penalty, especially as it is applied to classes of people like the terminally ill, have left jurisdictions free to make specific determinations that often lead to years and even decades of expensive legal battles for both the State and the inmate. In Hamm’s case, Alabama officials maintain that, despite the difficulty in completing the execution as scheduled, Hamm was “situated no differently than any other inmate in Alabama.”[27] The Supreme Court’s decision to lift the stay of execution signals that the Court is inclined to agree with Alabama’s position regarding terminally ill inmates whose deteriorating health complicates the administration of lethal injections. However, in light of the amount of failed executions in recent history, states have acted without the direction of the Supreme Court in order to assess the constitutionality of lethal injections.[28]

Upcoming Challenges on Both Sides of the Debate

States that allow the death penalty face the significant challenge of obtaining the drugs utilized in lethal injection executions.[29] Lethal injections typically involve three different drugs states must be able to secure in order to continue with a particular manner of execution.[30] With pharmaceutical companies ending their sales of these specific drugs to states that have the death penalty, prosecutors will have to come up with other alternatives.[31] On the other hand, states still maintain some ability to procure these drugs due to the amount of secrecy that surrounds executions and death penalty protocols.[32] Future measures taken by pharmaceutical companies who manufacture the necessary drugs for lethal injections will likely be a significant factor in the ability of states to carry out planned executions.

The criminal defense bar faces its own set of obstacles to overcome regarding the execution of terminally ill inmates or inmates who are otherwise unable to successfully receive a lethal injection. As the court in Boyd v. Warden[33]specified, inmates challenging an execution by lethal injection under the Eighth Amendment must provide an alternative method of execution that the state is ready to carry out.[34] As evidenced by the reviewed pleadings in Doyle Lee Hamm’s case, alternative methods suggested by inmates are often unsuccessful as they are not methods of executions utilized by the state.[35]

With so many factors affecting capital punishment in the United States, and the Supreme Court’s lack of general rulings on the practice, Hamm’s future remains unknown. Most recently, Hamm’s attorneys filed documents with the court on March 5, 2018 addressing certain issues arising from the failed attempt 14 days prior.[36]


[1]Hamm v. State, 564 So.2d 453, 455 (Ala. Crim. App. 1989).

[2]Lawrence Specker, Execution of Alabama Inmate Doyle Lee Hamm Called Off, Al.Com (February 22, 2018), http://www.al.com/news/birmingham/index.ssf/2018/02/alabama_inmate_doyle_lee_hamm.html.

[3]Melissa Brown, Doyle Lee Hamm Punctured at Least 11 Times in Execution Attempt, Report States, Montgomery Advertiser (March 5, 2018), https://www.montgomeryadvertiser.com/story/news/2018/03/05/execution-attempt-so-painful-inmate-hoped-get-over-report-states/397304002/.

[4]Specker, supra note 2.

[5]Ivana Hrynkiw, “It Was a Botched Execution”: Doyle Hamm’s Lawyer on Thursday’s Execution Attempt, Al.Com (February 26, 2018), http://www.al.com/news/birmingham/index.ssf/2018/02/doyle_lee_hamm_attempted_

execu.html.

[6]Bernard E. Harcourt, The Ghoulish Pursuit of Executing a Terminally Ill Inmate, N.Y. Times (December 20, 2017), https://www.nytimes.com/2017/12/20/opinion/executing-terminally-ill-inmates.html.

[7]Tracy Connor, Alva Campbell, Inmate Who Survived Execution Try, Dies in Ohio Prison, NBC News (March 3, 2018), https://www.nbcnews.com/news/us-news/alva-campbell-inmate-who-survived-execution-try-dies-ohio-prison-n852961.

[8]Id.

[9]Id.

[10]Id.

[11]Id.

[12]Kent Faulk, Alabama Death Row Inmate Who Survived Execution Date Asks Judge to Halt Future Attempts, Al.Com, (March 5, 2018) http://www.al.com/news/birmingham/index.ssf/2018/03/alabama_death_row_inmate_who_s.html.

[13]Tracy Connor, Court Oks Do-Over of Failed Lethal Injection of Romell Broom, NBC News (March 16, 2016), https://www.nbcnews.com/storyline/lethal-injection/court-oks-ohio-do-over-failed-lethal-injection-romell-broom-n540136.

[14]State v. Broom, 51 N.E.3d 620, 625 (Ohio 2016).

[15]Joseph P. Williams, Can The State Try to Execute the Same Inmate Twice?, U.S. News & World Report (December 8, 2016), https://www.usnews.com/news/national-news/articles/2016-12-08/broom-v-ohio-after-a-botched-execution-should-an-inmate-face-death-again.

[16]Broom v. Ohio, 137 S.Ct. 590 (2016).

[17]408 U.S. 238 (1972).  

[18]Furman, 408 U.S. at 240.

[19]Andrew Glass, Supreme Court Strikes Down Death Penalty, June 29, 1972, Politico (February 29, 2017), https://www.politico.com/story/2017/06/29/supreme-court-strikes-down-death-penalty-june-29-1972-239938.

[20]Id.

[21]Lee Rawles, US is an Outlier on Death Penalty Attitudes in North America, ACLU Attorney Says, ABA J. (February 3, 2018), http://www.abajournal.com/news/article/us_is_an_outlier_on_death_penalty_attitudes_in_north_america_aclu_attorney/ (noting that Mexico carried out its last execution in 1961, although the death penalty is still legal in that country, and Canada conducted its last execution in 1962, ultimately abolishing the death penalty in 1998).

[22]See Boyd v. Warden, 856 F.3d 853, 858 (11th Cir. 2017) (“It is by now clear in capital cases that a plaintiff seeking to challenge a state’s method of execution under the Eighth Amendment of the United States Constitution must plausibly plead, and ultimately prove, that there is an alternative method of execution that is feasible, readily implemented, and in fact significantly reduces the substantial risk of pain posed by the state’s planned method of execution.”).

[23]Ivana Hrynkiw, Execution Drug May Have Been Named in Court Filings from Alabama AG’s Office, Al.Com (January 18, 2018), http://www.al.com/news/index.ssf/2018/01/midazolam_in_alabama_execution.html.

[24]Arthur v. Comm’r, 840 F.3d 1268, 1302 (11th Cir. 2016).

[25]Hrynkiw, supra note 23.  

[26]Nelson v. Campbell, 541 U.S. 637, 649 (2004).

[27]Alabama’s Botched Lethal Injection Amounts to “Torture,” Columbia Law Professor Argues, Colum. L. Sch. (February 24, 2018), http://www.law.columbia.edu/news/2018/02/botched-execution-alabama-doyle-lee-hamm.  

[28]Williams, supra note 15.

[29]Hrynkiw, supra note 23.

[30]Harcourt, supra note 6.

[31]Hrynkiw, supra note 23.

[32]See id. (“Alabama has never released the makers of the drugs it uses in carrying out the death penalty.”).

[33]856 F.3d 853 (11th Cir. 2017).

[34]Boyd, 856 F.3d at 858; Hrynkiw, supra note 23.

[35]Hrynkiw, supra note 23.

[36]Faulk, supra note 12.

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