The Alabama Attorney General's office may have confirmed in a federal court document which company makes the sedative the state uses for lethal injections, and it's a pharmaceutical firm that refuses to directly sell drugs for executions.

How the Alabama Department of Corrections got the sedative midazolam made by Akorn Pharmaceuticals, despite the company's ban, is not entirely clear -- the state won't comment.

Doyle Lee Hamm is a Alabama Death Row inmate at Holman Prison. He is scheduled to die Feb. 22 by lethal injection. His lawyer since 1990 and professor of law and political science at Columbia, Bernard Harcourt, has argued that Hamm has lymphatic cancer and intravenous injection of the lethal drugs will cause significant pain and suffering. He states Hamm's only accessible vein is not large enough for the procedure.

Because of a federal court decision requiring an inmate to suggest an alternative method of execution, Harcourt states Hamm should be killed via oral injection-- which midazolam cannot be used for.

In Hamm's federal case, filed in the Northern District of Alabama, the AG's office submitted a motion to dismiss. In that motion, they state Hamm "fails to cite any data, article, study, literature, journal, or medical record suggesting that the drugs he lists could be used orally in the manner he suggests, much less that they would effectively cause his death in a painless manner."

The AG's office stated Hamm was treated for lymphatic cancer in 2014, but is currently in remission and not being treated for the illness.

The AG's filing includes drug information for the Akorn brand of midazolam. The motion states, "For example, while the FDA-approved package insert for the drug midazolam provides that it is constituted in 'dosage form for intravenous or intramuscular injection'... Hamm fails to allege any facts or produce any scientific evidence suggesting that midazolam, or any other drug listed in his complaint, would have the same pharmacological effect if it were given orally as opposed to intravenously as the drug is intended."

Akorn Pharmaceuticals is an Illinois-based drug manufacturer. In 2015, the company announced a policy that "endorses the use of its products to promote human health and wellness and condemns the use of its products, particularly midazolam and hydromorphone hydrochloride, in execution protocols."

The statement said the company would no longer accept orders from prison systems, and prisons that needed drugs for a "legitimate medical need" could purchase those items from wholesalers. The company said it was working to ensure that those wholesalers, and other distributors, agree to not resell midazolam and hydromorphone to prison systems and secondary wholesalers.

In the same announcement, Akorn said it had sent letters to all attorneys general and departments of corrections that may have purchased its products for executions, and asked the systems to return the drugs.

The executive director of the Death Penalty Information Center, Robert Dunham, said if a seller violated Akorn's policy, tracking numbers on the drugs' label would show which provider sold the drug to the DOC. If there is a legal issue with the prison system obtaining the drug, someone could have violated Akorn's contract rights.

"Is the government behaving legally, properly, ethically in carrying out the death penalty?" he said. "[The state] needs to make sure we're not violating the law to enforce the law."

In a response to the AG's motion filed Tuesday, Harcourt argues Hamm's medical condition has worsened over the past year. He states there is not an adequate vein that the three-drug solution, in which the first drug is the sedative midazolam, can be administered.

"As an original matter, Doyle Hamm had a lengthy medical history that included epilepsy, brain damage, a seizure disorder, significant medications for seizures, extensive intravenous drug use, and cognitive disabilities ... Doyle Hamm's medical condition deteriorated significantly prior to or around February 2014, when he was diagnosed with cranial and ocular lymphatic cancer, specifically with large cell lymphoma that was aggressive and fast growing," Harcourt said.

"However, beginning in early 2017, the nurses at Donaldson Correctional Facility have only been able to draw blood with difficulty from one small tortuous vein on his right hand," Harcourt's filing states.

Alabama has never released the makers of the drugs it uses in carrying out the death penalty. There has never been information publicly released on the exact protocol for executions, either.

Harcourt told AL.com, "The secrecy that [AG] Steve Marshall demands is a clear sign that what's going on is disgraceful. You don't hide when you are doing justice. You only conceal something infamous. Other states make their protocols public, there is no legitimate reason to conceal them."

"The most flagrant abuse is that Marshall has refused to disclose to me, Doyle's attorney, even under a confidentiality agreement, the protocol for venous access that they intend to use on Doyle. He won't even tell me how they plan to access his veins, even though they recognize its difficult. That's unacceptable," he said.

The AG's office declined to comment for this story, yet did not confirm nor deny whether Akorn is the brand of midazolam the state plans to use in its upcoming executions. The Alabama DOC did not respond to AL.com's request for comment by the time of publication.

Hamm has been in prison since 1987, after being convicted in the murder of Patrick Cunningham. Cunningham was an employee of Anderson's Motel in Cullman, and was killed during a robbery.

Another death row inmate, Vernon Madison, is scheduled to be executed Jan. 25.

Akorn Statement by Ivana Hrynkiw on Scribd