« "Three ways conservatives can lead criminal justice reform" | Main | "President Trump Commutes Sentence of Sholom Rubashkin"!?!?! »

December 20, 2017

Lamenting that the "law descends into a ghoulish inferno" as it contemplates the execution of a condemned Alabama murderer

LawProf Bernard Harcourt has this lengthy new op-ed in the New York Times under the headline "The Ghoulish Pursuit of Executing a Terminally Ill Inmate."  Both the substance and style of the commentary is compelling, and here are excerpts:

When judges schedule a lethal injection for a terminally ill prisoner whose struggle against lymphatic cancer and extensive medical history has left him without any easily accessible veins, our law descends into a ghoulish inferno.  It is a dreadful place where our most august jurists ruminate over catheter gauges and needle sizes, and ponder whether to slice deep into the groin or puncture internal jugular veins. History will not judge us favorably.

Last week, only a few hours after the stunning electoral victory of a Democratic candidate in the Alabama senatorial race, the justices of the Alabama Supreme Court signed a death warrant in the case of a 60-year-old man who has been languishing on death row for 30 years and fighting cranial cancer since 2014.

I had barely managed to absorb the news from Alabama’s election when I got the call at noon the next day. I recognized the Alabama area code but thought it was a reporter seeking a comment on the election.  Instead, a clerk from the Alabama Supreme Court dryly notified me that the justices had just set an execution date for my longtime client, Doyle Lee Hamm.

Mr. Hamm has been on Alabama’s death row since 1987, after being convicted of murdering a motel clerk, Patrick Cunningham, during a robbery.  For over three years now, he has been battling a fierce lymphatic and cranial cancer.  In February 2014, Mr. Hamm was found to have a large malignant tumor behind his left eye, filling the socket where the nerves from his brain went into his eye.  The doctors found B-cell lymphoma, a type of blood cancer of the lymph nodes, with a large mass protruding through the holes of his skull. They also discovered “numerous abnormal lymph nodes” in the abdomen, lungs and chest....

His medical treatment and history has left him without any usable peripheral veins.  Back in late September, an anesthesiologist from Columbia University Medical Center, Dr. Mark Heath, conducted an extensive physical examination to determine whether there were any veins suitable to deliver a lethal injection.  Dr. Heath found no usable veins. He also found that Mr. Doyle’s lymphatic cancer was likely to interfere with any attempt to utilize his central veins.  In Dr. Heath’s expert opinion, “the state is not equipped to achieve venous access in Mr. Hamm’s case.”

Yet, without even addressing the risks associated with attempting venous access for a man who will be 61 years old with no usable veins in his arms or legs, the justices of the Alabama Supreme Court set an execution date.  Some other judges — perhaps on the federal bench — now will have to deal with the bloody mess.  And a bloody mess it would be.

Those other judges will have to pore over medical reports and sonograms — as a federal judge did in the case of David Nelson, another Alabama death row inmate, in 2006, before he died of cancer — to decide whether they can insert an 18-gauge catheter into Mr. Hamm’s femoral vein in his groin, or scalpel him open to find a subclavian vein, or poke around his neck to find his internal jugular vein; whether the thickness of the catheter would preclude pricking a vein in his hand where a butterfly needle can no longer enter; and how to navigate around malignant lymph nodes while trying to achieve percutaneous access to his central veins....

This is justice today. Court opinions filled with ghastly details about how we prick and poke, and slice and cut, and poison other human beings. Opinions that, someday soon, we will look back on with embarrassment and horror.  Our justice is so engrossed with how we kill that it does not even stop to question the humanity of executing a frail, terminally ill prisoner.

In Doyle Hamm’s case, the lack of peripheral veins and lymphatic inflammations create the unconstitutional risk of a cruel and unnecessarily painful execution.  But the constitutional violation is only half of it.  It is justice itself that is in peril.

You may recall the machine that Franz Kafka brilliantly described in the haunting pages of “The Penal Colony.” That machine tattooed the penal sentence on the condemned man’s body, over hours and hours, before sucking the life out of him.  Our machinery of death today makes Kafka’s imaginative machine seem almost quaint.  Ours not only tattoos the condemned man’s body with needles and scalpels but also irremediably taints our justice for years to come.

Stories like these continue to reinforce my belief that states seriously interested in continuing with the death penalty ought to be seriously involved in exploring execution alternatives to lethal injection.

Meanwhile for more background on this particular lawyer's work to prevent his client from being executed, one should check out this New Yorker post  headlined, "The Decades-Long Defense of an Alabama Death-Row Prisoner Enters a Final Phase."

December 20, 2017 at 06:28 PM | Permalink


This is really sad state of affairs, a person on the death row for the past 30 years and now terminally ill is being executed? This is justice not done!

Posted by: Paul Carrillo | Dec 20, 2017 6:49:21 PM

The prisoner sounds in bad shape. He may die over the next few months or years. He will do so slowly, painfully, and in respiratory distress.

His execution should be stopped, so he may suffer a long time at the hands of abolitionist lawyers. His lymphatic cancer will eventually pop his eye out. Some metastases may also attack the lining of his abdomen, and put him in the same pain as being gut shot. He should then be denied opiates to avoid causing him to become addicted, and to avoid second guessing by DEA thugs.

Good job abolitionists. This prisoner's estate should sue them for a wrongful and agonizing death as an intentional tort. They have good understanding of his cancer, from the above article. That knowledge is malice.

Posted by: David Behar | Dec 20, 2017 11:05:35 PM



Yes, we need a better method of execution. I have been advocating nitrogen gas longer that I can remember.

But, Dr. Heath is a, strictly, anti death penalty physician, paid only for the worst possible news, with regard to lethal injection, much of which has been proven false.

Harcourt is parroting that worst possible scenario, without noting that when a cut down is performed the murderer will not feel it and that this murderer may be executed without any of this drama.

You bought into one side of the story.

Maybe you could research a little bit more about Patrick Cunningham, the actual innocent murder victim.

And maybe a little bit more on judicial irresponsibility, allowing 30 years of appeals

Posted by: Dudley Sharp | Dec 21, 2017 3:34:35 AM

Dudley. Did you hear the expression, easy as taking candy from a baby? It is said only by people who have never tried to do so. It is not easy to take candy from a baby.

Now, try to take away $billions from lawyers. Do not waste your breath on a lawyer. You are asking lawyers to give up the $billion death penalty appellate racket, after its being fine tuned for maximum rent by the Supreme Court in Baze.

Multiply $3 million by 3000. Do you think any lawyer is listening to self evident facts and reason? If you do, you believe it is easy to take candy from a baby.

Posted by: David Behar | Dec 21, 2017 6:34:16 AM

Mr. Behar, I'm embarrassed that you discvered my scam. I have been representing death sentenced prisoners for years, and, you're right, the fantastic hourly rate I receive from state and federal appointments has made me fabulously wealthy. I have condos in Manhattan, Paris, Beijing, and St. Petersburg. Every time someone is sentenced to death, I rejoice in a new found source of wealth. Come join me in my Manhattan condo: all the wine, women (or men, if you prefer, evey boys or girls), song. So glad I am a rent-seeking lawyer. By the way, I just bought a yacht and plan on sailing to Santorni in the summer? Care to join me. You sound like delightful company.

Posted by: rent seeking lawyer | Dec 21, 2017 10:28:34 AM

Rent. That is the irony, you job pays shit. But, it is the only one you think you can get.

Firing you would help you, by weaning you off your total government dependency.

I support a straight federal statute banning the death penalty by conditioning criminal justice funding on state abolition.

We can then move on to the Italian death penalty. It will cost a carton of cigarettes to a lifer, instead of $3 million.

You can become a great high school American history teacher, making a lot more than you are now. Even I would watch your recorded Youtube presentation, when you reach the US constitution.

You would have this poor guy's eye pop out to keep your worthless, tax ripoff job.

By, the way, 10 years ago, I spoke to your colleagues in Cali, at a Malibu party. They were too stupid to listen. One of the pro-criminal, lawyer bitches there opened her arm, all purple from a phlebotomist digging around. I felt it. It was filled with lumpy old blood. I asked if the lab tech had violated her 8th Amendment right to avoid cruelty. I saw no substantial difference between what was done to her, and what could happen to her client, per her briefs. These points had been written for a Cali judge by a real weasel in my class. She was a board certified internist on the faculty at Stanford, the equivalent of Harvard in Cali. She used super technical medical knowledge to protect an awful murderer. Back to the appellate lawyer, I told her the sole cruelty was the set date. How would she like to know the precise time of her death, even if she had a terminal condition. I told her, any statement about general deterrence merits a motion for an immediate mistrial, since one may not punish the defendant to scare future ones he has never met. She never listened, and her office went on to lose the Baze decision. Your profession did very well from that decision.

Posted by: David Behar | Dec 21, 2017 8:54:34 PM


My apologies. I was more than a little bit snarky.

Thank you, as always, for the great wealth of relevant information that you put together for use swine.

Posted by: Dudley Sharp | Dec 22, 2017 4:00:30 PM

I thought the internet, and especially blog comment sections, were invented to facilitate snark. No worries and thanks for the thanks. Happy and merry to us all.

Posted by: Doug B | Dec 22, 2017 6:20:50 PM

Pointing to 30 million crimes year after year, and 2 million prosecutions, with 20% being false positives, is considered snark.

Posted by: David Behar | Dec 24, 2017 7:25:57 AM

Rent. If only the lawyers could listen a little. Your number would be fewer. However, your income and your value to the public would be 4 times those of today. Your public esteem would be 10 times more.

How would you like that?

Posted by: David Behar | Dec 27, 2017 8:19:46 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB