Executing the Sick and Frail in Alabama

On January 25th, Alabama had planned to execute a man who cannot remember the crime for which he had been sentenced to death. Vernon Madison is 67, and has spent half of his life on death-row for the 1985 murder of a police officer in Mobile, Alabama. Madison has suffered a series of strokes, which have led to the development of vascular dementia. He is legally blind, incontinent, cannot walk independently, and suffers from slurred speech.

Vernon Madison. Photo courtesy of EJI.

In November, the United States Supreme Court reversed a lower court decision that found Madison ineligible for execution, since his precipitous mental decline has led to no memory of his crime. The decision to reverse was unanimous, but Justice Breyer was clearly troubled by what he saw as an emerging trend:

“We may face ever more instances of state efforts to execute prisoners suffering the diseases and infirmities of old age,” Justice Breyer said. “And we may well have to consider the ways in which lengthy periods of imprisonment between death sentence and execution can deepen the cruelty of the death penalty while at the same time undermining its penological rationale.”

Madison’s execution was planned for 6 PM on January 25. The Supreme Court intervened at 5:30 PM, issuing a temporary stay. Two and a half hours later, the stay had been granted while the court decides how to proceed with the appeal from Madison’s attorneys at the Equal Justice Initiative.

Madison isn’t the oldest person on Alabama’s death row: Walter Moody, Jr., is 83 years old, and has been on death row for 20 years. Charlie Washington is 70, and has been on death row for 14 years. Last year, Alabama executed 75-year-old Tommy Arthur.

Madison isn’t even necessarily the sickest man on Alabama’s death row.

Doyle Lee Hamm, who is scheduled to be executed on February 22, is 61 years old. Hamm has been on death row since 1987. When he was sentenced to die, Alabama was still using a yellow-painted electric chair, ghoulishly nicknamed Yellow Mama, to kill people.

Doyle Lee Hamm, courtesy of MS DOC.

Hamm has also been living with cranial and lymphatic cancer for four years. His attorneys have argued that, since treatment for his cancers has compromised his veins, attempting to execute him via lethal injection would be cruel and unusual. Hamm received radiation to his skull for his cranial cancer, but doctors discovered a number of abnormal lymph nodes in his abdomen, chest, and lungs. Last year, a biopsy of his eye tissue revealed that the cancer had spread.

Hamm’s longtime attorney (and former Southern Center intern) Bernard Harcourt invited Dr. Mark Heath, an anesthesiologist and professor of medicine at Columbia University, to examine Hamm. Heath was not allowed to bring any medical equipment into the prison; they had to improvise and use Harcourt’s tie as a makeshift tourniquet in order for the doctor to examine Hamm’s veins. Heath found that there was only one potentially usable vein on Hamm’s body — on his right hand — and even that vein was highly susceptible to rupture. The inability of prison personnel to swiftly and properly inject the lethal drugs could “cause Mr. Hamm to become paralyzed and consciously suffocate,” Heath said.

There’s ample evidence that this can happen in the course of an execution. In 2014, government officials and witnesses in the Oklahoma death chamber watched, for 43 minutes, as Clayton Lockett convulsed and writhed in pain, attempting to lift himself off the gurney and out of his leather restraints on more than one occasion, eventually managing to utter “I’m not,” and “something’s wrong.” His vein had ruptured as prison officials attempted to administer the lethal drugs.

Last November, 69-year-old Ohio death-row inmate Alva Campbell Jr. ― who has been seriously ill for a number of years ― was poked and prodded at by prison officials and medical professionals as they labored to find a suitable vein to inject the lethal drugs into his system. Journalists who were witnesses to the execution said that prison staff first attempted to find a suitable vein in each of Campbell’s arms, twice, and then tried a vein in his right shin. At one point in the process, Campbell began to cry. After more than two hours, his execution was called off. He was the third US citizen to earn the dubious distinction of surviving their own execution.

Hamm’s execution was stayed earlier this month by U.S District Judge Karen O Bowdre, but on February 14th, the 11th Circuit Court of Appeals granted Alabama’s emergency motion to vacate the stay. The 11th Circuit also ordered the appointment of an independent medical examiner to examine Hamm and to announce the findings of that evaluation no later than February 20th.

Reasonable people can debate the morality and efficacy of capital punishment. But the act of executing senior citizens and the very ill descends into, as Bernard Harcourt writes in the New York Times, a ghoulish inferno. “This,” Harcourt writes, “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.”

Bail Reform Comes to Atlanta

Money bail is American exceptionalism of the wrong variety. The United States is one of just two countries worldwide (the other being The Philippines) that continues to use a system of wealth-based detention. But around the country, people are waking up to this injustice. This week, Atlanta joined cities like Chicago, Nashville, Birmingham, New Orleans, and others that have recently ended their use of wealth-based detention to jail indigent citizens awaiting trial for petty offenses. The flagrant inequality of detaining those without means – while those with means walk free – was a stain on our city’s national reputation as civil rights leader.

Atlanta Municipal Court Building.

At the Southern Center for Human Rights, we’ve dealt with unconstitutional bail policies before (in 2015, we sued the City of Calhoun, Georgia for its illegal practices) and the criminalization of poverty has long been a priority issue for us. So, when local organizers and activists flagged bail reform as a priority in Atlanta, we were ready to join. We pored through jail dockets, noting the type of offense and the set bail amount, flagging the many cases where it seemed clear that an individual was being detained simply because they couldn’t afford their bail.

We discovered that every night, jail cells in Atlanta are full of people who have been charged with petty offenses – like driving without a license or littering – because the city’s policy required money bail that these individuals did not have. If those same people could afford to pay their set bail, they would simply walk out of the jail and return to their jobs, families, and communities. Instead – just because they are poor – they remained behind bars.

We discovered that in Atlanta, in 2016, at least 890 people were transferred from the city jail to the county jail after an inability to pay their bail. Those 890 people were detained for a combined 9,000 hours, at a cost of approximately $700,000 to taxpayers.

Money bail systems that detain only low-income people devastate families and communities, overcrowd jails, lead to increased crime, cost municipalities millions of dollars in excess costs, and violate basic constitutional and human rights. There is no place for wealth-based detention in our society – and that’s what we told former Atlanta Mayor Kasim Reed when we, along with Civil Rights Corps, wrote to him in November to sound the alarm on the corrosive impacts of Atlanta’s unconstitutional money bail system, and demand a change.

On September 192017, Atlanta Police arrested Sean Ramsey. His crime? Mr. Ramsey was standing on the sidewalk, holding up a hand-written cardboard sign which read ‘homeless, please help.’ Charged with an Atlanta ordinance violation which bans the solicitation of rides or business by pedestrians, Ramsey was taken to the Atlanta City Detention Center. Legally, he should have been brought before a judge within 48 hours. That didn’t happen. He remained behind bars for a staggering 72 days without a hearing, simply because he could not afford the $200 bond that was set for him. He remained in jail for almost a month after the solicitor’s office had dismissed his case.  As soon as we learned of his story, we filed an emergency habeas corpus petition, and Mr. Ramsey was finally released on the evening of November 29.

The cost? Because one man didn’t have $200, Fulton County taxpayers paid a total of $5,558.40 to incarcerate him. The psychological impact of 72 days of incarceration on Mr. Ramsey is incalculable.

In January, we filed another emergency petition, this time on behalf of Randall McCrary. Mr. McCrary was arrested at gas station on October 22, 2017, after reports that he had been yelling at customers. McCrary, who is mentally ill, was covered in feces when the police arrested him. Once in the Atlanta jail, there was no inquiry into whether or not Mr. McCrary, who receives social security payments due to mental illness, could pay the $500 bond the judge set for him. Mr. McCrary stabilized once medicated, but because he still couldn’t afford his bond, he remained behind bars. His social security payments were halted. After we filed the habeas petition, Mr. McCrary was released. An anonymous donor was moved by his story and posted his $500 bail. His case was later dismissed.

Neither Mr. Ramsey nor Mr. McCrary’s cases were anomalies: Atlanta’s poorest citizens were regularly being incarcerated for petty offenses, unable to post their bail. Our attorneys visited with many people with serious mental illness who were being held in deplorable jail conditions for months on end – even up to a year – for minor violations as they awaited competency evaluations.

Keisha Lance Bottoms was sworn in as mayor of Atlanta on January 2, 2018. Again, we joined with Civil Rights Corps to write to Mayor Bottoms, asking her to uphold her commitment to criminal justice reform by ensuring that no one is incarcerated in the city of Atlanta simply because they can’t afford to buy their freedom. Mayor Bottoms, who has spoken movingly on her dedication to criminal justice reform in the past, answered our call.

We worked with the City’s Law Department to craft an ordinance that accomplished meaningful reform; one that eliminated cash bail for most minor non-violent offenses that come before the municipal court. If someone with means can await trial at home, that same opportunity should be available to a poor person charged with the same crime.

Not everyone on the City Council was immediately willing to support the ordinance. It takes a village, and we have one: our community partners and supporters contacted City Council members, showed up to votes and working meetings, and helped us spread the word about the need for bail reform. On February 5, the City Council met for over six hours to hear from community members and debate the proposed ordinance. The bail bond industry showed up in force to fight to keep wealth-based detention in Atlanta.

But we showed up, too.

“It’s not radical to ask that people without money are treated the same way as people with money,” SCHR Managing Attorney Sarah Geraghty told the City Council. Activists with Southerners on New Ground, who have successfully bailed out more than 50 women arrested for minor offenses in Atlanta, brought the personal into the political as they organized impacted people to show up and speak out. Civil rights leaders from around the city advocated for reform. “We are asking you to support the people, and not the profiteers,” SCHR board member Mawuli Davis told the Council. “That’s what it’s about, and it’s dead wrong.”

The City Council agreed, and voted – unanimously – to adopt the ordinance. Mayor Bottoms signed it the next day. “With this ordinance,” she said, “We are affirming that people should not be held in jail because they cannot pay bond. We are also making a commitment that the City of Atlanta will ensure that no one will be jailed because of their inability to pay.”

The City Council agreed, and voted – unanimously – to adopt the ordinance. Mayor Bottoms signed it the next day. “With this ordinance,” she said, “We are affirming that people should not be held in jail because they cannot pay bond. We are also making a commitment that the City of Atlanta will ensure that no one will be jailed because of their inability to pay.”

Ordinance 18-0-1045 is adopted in a unanimous vote.
Mayor Keisha Lance Bottoms signs the ordinance into law.

The End Money Bail Coalition was the culmination of many organizations and individuals uniting to demand change. The coalition consists of SCHR, Southerners on New Ground, Gideon’s Promise, Sankofa United Church of Christ, Davis Bozeman Law Firm, Lawyers United for a New Atlanta, SisterCARE Alliance, Concerned Black Clergy of Metropolitan Atlanta, ACLU of Georgia, Atlanta NAACP and Clayton Henry National Action Network. We were, and are, privileged to stand with them. The passage of this ordinance is a win for fairness and equality, and it gets us that much closer to ending wealth-based detention in our city for good.

Read the ordinance here, and a summary here.

Some of the End Money Bail Coalition with Mayor Bottoms.