In a victory for the media and advocates of open government, a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit ruled on March 18, 2019 that Alabama must disclose key portions of its highly secretive lethal-injection execution protocol to the public. The Associated Press, the Montgomery Advertiser, and Alabama Media Group had sued for access to the protocol, which came under intense scrutiny in the wake of Alabama’s failed attempt to execute Doyle Lee Hamm (pictured) in February 2018.

Hamm, who has terminal cancer, challenged Alabama’s execution protocol. He argued that his veins had been compromised by his illness and executing him by lethal injection would constitute cruel and unusual punishment. The courts permitted the execution to proceed after Alabama said it would not attempt to insert an IV-line in Hamm’s arms or upper extremities. On February 22, 2018, executioners tried and failed for two-and-one-half hours to set an intravenous execution line. Alabama Department of Corrections Commissioner Jeffrey Dunn called off the execution but told the media, “I wouldn’t characterize what we had tonight as a problem.” Dunn repeatedly asserted the state had followed its execution protocol and claimed the execution had been halted only because the late court rulings in the case did not leave corrections personnel sufficient time to execute Hamm before his death warrant would have expired. Hamm filed a federal civil-rights lawsuit seeking to prevent Alabama from attempting to execute him a second time. As part of that suit, he filed a doctor’s report—the only public document describing the circumstances of the execution attempt—that indicated execution personnel had unsuccessfully inserted IV needles more than 10 times into Hamm’s feet, legs, and right groin, causing bleeding in his groin, and likely puncturing his bladder, causing blood in his urine. Shortly thereafter, Hamm and the state reached a confidential settlement in which Alabama agreed not to seek another execution date, the court records of the case would be sealed, Hamm would dismiss his lawsuit, and Hamm and his lawyers would not disclose any additional information about the case. In the aftermath, the three media outlets filed a motion to gain access to the protocol and execution records. A federal district court ruled in their favor in May 2018.

Alabama appealed that ruling, arguing that the lethal-injection protocol had never been formally filed with a lower court, and therefore was not a court record subject to public access. The appeals court rejected that argument, with Judge Charles Wilson writing: “Alabama’s lethal injection protocol may not have been formally filed under the rushed timeline of Hamm’s approaching execution, but the protocol constitutes a judicial record subject to the common law right of access because it was submitted to the district court to resolve disputed substantive motions in the litigation, was discussed and analyzed by all parties in evidentiary hearings and arguments, and was unambiguously integral to the court’s resolution of the substantive motions in Hamm’s as-applied challenge to the protocol.” The decision also addressed the importance of transparency to the public, saying “Judicial records provide grounds upon which a court relies in deciding cases, and thus the public has a valid interest in accessing these records to ensure the continued integrity and transparency of our governmental and judicial offices.”

Alabama’s execution secrecy has been at the core of several other 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.

(Court: Alabama can’t keep its lethal injection method secret, Associated Press, March 19, 2019; Kayla Goggin, Alabama Must Disclose Lethal-Injection Protocol, Courthouse News Service, March 18, 2019.) Read the Eleventh Circuit’s decision. See Lethal Injection and Secrecy.

For the second time in just over one month, the United States Supreme Court has cleared the way for the execution of an African-American prisoner in the face of strong evidence of racial or religious bias. On March 18, 2019, the Court unanimously declined to hear an appeal from Georgia death-row prisoner Keith Tharpe (pictured), who argued his death sentence was unconstitutionally tainted by the participation of racist white juror who called him a “ni***er” and questioned “if black people even have souls.” That juror, Barney Gattie, signed an affidavit also saying that there were “two types of black people: 1. Black folks and 2. Ni**ers.” Tharpe, Gattie said, “wasn’t in the ‘good’ black folks category [and] should get the electric chair for what he did.” In February, in a decision that evoked widespread condemnation from critics across the political spectrum, the Court vacated a stay of execution for Domineque Ray, a Muslim death-row prisoner, after Alabama denied his request to have an Imam present at the execution in circumstances in which it provided a chaplain for Christian prisoners.

Though agreeing on procedural grounds that the Court should not review the case, Justice Sonia Sotomayor issued a statement in connection with the Court’s action saying she was “profoundly troubled by the underlying facts of the case.” She wrote: “These racist sentiments, expressed by a juror entrusted with a vote over Tharpe’s fate, suggest an appalling risk that racial bias swayed Tharpe’s sentencing.” Justice Sotomayor said the latest decision “may be the end of the road for Tharpe’s juror-bias claim,” and the Court should therefore “not look away from the magnitude of the potential injustice that procedural barriers are shielding from judicial review.” "It may be tempting to dismiss Tharpe's case as an outlier, but racial bias is a familiar and recurring evil," she wrote. "That evil often presents itself far more subtly than it has here. Yet Gattie's sentiments—and the fact that they went unexposed for so long, evading review on the merits—amount to an arresting demonstration that racism can and does seep into the jury system."

In January 2018, the U.S. Supreme Court ordered the U.S. Court of Appeals for the Eleventh Circuit to reconsider Tharpe’s case, acknowledging that Tharpe had “present[ed] a strong factual basis for the argument that [his] race affected Gattie’s vote for a death verdict.” However, the appeals court refused to review his discrimination claim, saying he had never presented the issue to the state courts. Tharpe sought review of that decision by the U.S. Supreme Court, and received support from a number of groups, including Catholic bishops and the NAACP Legal Defense Fund.

Responding to the Court’s decision, Tharpe’s attorney Marcia Widder said in a statement: “Today’s decision from the U.S. Supreme Court takes giant steps backwards from the Court’s longstanding commitment to eradicating the pernicious effects of racial discrimination on the administration of criminal justice. What happened in Mr. Tharpe’s death penalty case was wrong. … Allowing Mr. Tharpe’s death sentence to stand is an affront to the fairness and decency to which we, as a society, should aspire.  True justice would not permit the State of Georgia to execute Mr. Tharpe on the basis of this record.” The NAACP Legal Defense Fund, which filed an amicus brief urging the Court to hear Tharpe’s case, issued a statement saying, “the Court’s refusal to consider his case on the merits is deeply distressing. As the Court recognized in Buck [v. Davis, in which a mental health expert testified that Buck posed an increased risk of future dangerousness because he is black], allowing death sentences to stand tainted by overt racial discrimination weakens public confidence in the rule of law and the administration of justice.” Putting it more directly, commentator Michael Harriot wrote for The Root, “Unlike the appeals process, apparently racism has no expiration date.”

(Ariane de Vogue, Supreme Court declines to take up Georgia death penalty case, CNN, March 18, 2019; Tony Mauro, Sotomayor Is 'Profoundly Troubled' by Georgia Death Penalty Case, National Law Journal, March 18, 2019; Michael Harriot, Supreme Court Declines to Hear Case of Man Sentenced to Death by a Racist Juror, The Root, March 18, 2019; Statement, Marcia Widder, Attorney for Keith Tharpe and Senior Litigator at the Georgia Resource Center, March 18, 2019; Press Release, LDF Statement on U.S. Supreme Court Declining to Review Keith Tharpe’s Racially-Biased Death Sentence, NAACP LDF, March 18, 2019.) Read Justice Sonia Sotomayor’s statement respecting the denial of certiorari. See Race and U.S. Supreme Court.