The Court’s new death penalty order is almost too cruel to be believed.
Hamm v. Reeves, a death penalty order that the Supreme Court handed down Thursday night, is an epilogue to a longstanding tension between drug companies that do not wish their products to be used to kill people, and states that are willing to use unreliable drugs to conduct executions if effective sedatives are not available.
It’s also unsettlingly cruel.
The upshot of the Court’s 5-4 decision in Hamm is that a man was executed using a method that may have caused him excruciating pain, most likely because that man’s disability prevented him from understanding how to opt in to a less painful method of execution.
There is significant evidence that Matthew Reeves, a man convicted of murder that the state of Alabama executed after the Supreme Court permitted it to do so on Thursday, had an intellectual disability. Among other things, as Justice Sonia Sotomayor noted in a 2021 dissenting opinion, an expert employed by the state gave Reeves an IQ test and determined that “Reeves’ IQ was well within the range for intellectual disability.”
The Supreme Court held in Atkins v. Virginia (2002) that “death is not a suitable punishment” for someone with an intellectual disability. Nevertheless, in its 2021 decision in Dunn v. Reeves, the Supreme Court voted along party lines to effectively prevent Reeves from avoiding execution.
The issue in Hamm, the decision that the Court handed down Thursday night, is quite narrow. After Dunn, it was no longer a question of whether Alabama could execute Reeves. The only question was how Alabama could conduct this execution — and whether the state was allowed to use a method that may very well amount to torture, even over Reeves’s objection.
This time the Court split 5-4, with Justice Amy Coney Barrett crossing over to vote with the three liberal justices. But, in a Court with a 6-3 Republican supermajority, Barrett’s vote was not enough to save Reeves from the fate that Alabama chose for him. He was executed by lethal injection.
The Supreme Court’s decisions impose a terrible burden on death row inmates and their lawyers
Many states used to use a three-drug combination to execute people on death row. First, the inmate would be injected with sodium thiopental, an anesthetic that was supposed to prevent the inmate from feeling the effects of the drugs that would kill them. The inmate would then be injected with a paralytic drug, and finally with a lethal drug that would stop their heart.
But supplies of sodium thiopental dried up, at least for executioners, around 2010 — in part because pharmaceutical companies refused to sell the drug for use in executions, and in part because the European Union forbids companies from exporting drugs for such a purpose. As a result, some states turned to less reliable sedatives.
The result was botched executions, where inmates were visibly in excruciating pain during their executions. As Sotomayor wrote in a 2015 dissenting opinion, these unreliable execution drugs leave death row inmates “exposed to what may well be the chemical equivalent of being burned at the stake.”
But the Supreme Court’s Republican majority has not shown much sympathy for inmates who ask not to be tortured to death. Among other things, the Court has held that an inmate who objects to one form of execution must suggest an alternative method or their objection will fail. As Justice Neil Gorsuch wrote for the Court in Bucklew v. Precythe (2019), “a prisoner must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason.”
Meanwhile, some states have responded to these developments by authorizing new methods of execution. South Carolina, for example, recently enacted a law making electrocution the default method of execution in that state, and also permitting some inmates to be executed by firing squad.
Alabama, meanwhile, passed a law that nominally allows people on death row to choose a method of execution other than lethal injection, but only if they act within a very short window of time. As Justice Elena Kagan describes this Alabama law in her dissenting opinion in Hamm, “a recently enacted state law gave those inmates one month to select execution by nitrogen hypoxia” — where the inmate is placed in a gas chamber filled with nitrogen gas and asphyxiated — “rather than lethal injection.”
Many experts believe that nitrogen hypoxia is much less painful than lethal injection, especially if the state does not have access to reliable anesthetics. Although, for obvious reasons, it’s impossible to conduct an ethical experiment on actual people to determine if one method of killing is less painful than others.
The specific legal issue in Hamm concerns the paper form that the state gave inmates, which allowed them to choose nitrogen hypoxia over lethal injection. As Kagan notes, “the form was written in legalese, and according to unrebutted evidence, an inmate needed at least an 11th-grade reading level to understand it.” But Reeves had “cognitive limitations.” He had “the same reading ability as an elementary-school child,” and “one expert testified that Reeves’s ‘reading comprehension was at the 1st grade level.’”
A lower court determined that, under the Americans With Disabilities Act, the state needed to help Reeves understand the form before he could be executed. But five justices, in a two-sentence order that offers no explanation whatsoever of why they reached this decision, permitted Alabama to move forward with the execution — and to do so using lethal injection.
If you’ve read this far, your skin is probably crawling right now
The Eighth Amendment is supposed to prohibit “cruel and unusual punishments.” But the Court has held that the death penalty enjoys a kind of super-constitutional status that requires executions to move forward, even if there is no way to conduct them humanely.
This was the holding of Glossip v. Gross (2015), one of several Supreme Court decisions confronting the shortage of reliable anesthetics for use in executions. “Because it is settled that capital punishment is constitutional,” Justice Samuel Alito wrote for the Court in Glossip, “it necessarily follows that there must be a [constitutional] means of carrying it out.” (The name of the logical fallacy on display in Alito’s opinion is “begging the question.”)
So if the only available method of killing a death row inmate is “the chemical equivalent of being burned at the stake,” Glossip’s response to this dilemma is to allow the execution to happen anyway.
Several justices, moreover, have indicated that they have a different, more personal reason for denying relief to death row inmates. As an execution draws nigh, lawyers representing the inmate typically file a flurry of motions seeking to save their client’s life — or, at least, to make the execution less painful. Often, this last-minute litigation involves issues that neither the lawyers nor the client could reasonably have known about in advance. In one case, for example, a prison did not inform an inmate about key details of its execution policy until about two weeks before his execution.
But many of the justices appear quite bothered by the fact that they need to decide these last-minute appeals, which may arrive at the Court on a night when a justice has other plans. In Bucklew, Gorsuch complained that “last-minute stays should be the extreme exception,” and he claimed that death row inmates and their lawyers are engaged in “manipulation” of the system.
More recently, during an oral argument concerning the religious liberties of death row inmates, several justices complained that, if the Court honored the particular application of the First Amendment rights of the inmate in that case, it would open the floodgates to future litigation seeking to vindicate similar rights. As Justice Brett Kavanaugh complained to the inmate’s lawyer, “if we rule in your favor in this case, this will be a heavy part of our docket for years to come.”
One might think that, given the gravity of killing another human being, the courts should pay special attention to death penalty cases — if for no other reason than because an execution can never be reversed if a court later discovers that it was unlawful or unjustified. But that is not the attitude of this Supreme Court.