The Supreme Court’s decision in Hamm v. Reeves, issued Thursday night, is the culmination of a long-running conflict between drug firms who don’t want their products used to murder people and governments ready to employ unreliable medications to carry out executions if effective sedatives aren’t available.
It’s also downright harsh.
The Court’s 5-4 decision in Hamm means that a man was executed using a procedure that may have caused him great agony, most likely because his impairment prevented him from comprehending how to choose a less harsh form of death.
There is substantial evidence that Matthew Reeves, a man convicted of murder who was killed by the state of Alabama after the Supreme Court allowed it on Thursday, had an intellectual impairment. An expert hired by the state gave Reeves an IQ test and indicated that “Reeves’ IQ was well within the range for intellectual impairment,” as Justice Sonia Sotomayor emphasized in a 2021 dissenting opinion.
The Supreme Court held in Atkins v. Virginia (2002) that “death is not a suitable punishment” for someone with an intellectual disability. Nonetheless, the Supreme Court decided along party lines in Dunn v. Reeves in 2021, ultimately preventing Reeves from avoiding death.
The question in Hamm, which was decided by the Supreme Court on Thursday night, is rather small. It wasn’t a matter of whether Alabama could execute Reeves after Dunn. The only question was how Alabama would carry out the execution – and whether it would be permitted to utilize a procedure that may be considered torture, notwithstanding Reeves’ objections.
Death Penalty Ruling
The Court was split 5-4 this time, with Justice Amy Coney Barrett voting with the three liberal justices. Barrett’s vote, however, was not enough to spare Reeves from the doom that Alabama had planned for him in a Court with a 6-3 Republican supermajority. He died as a result of a deadly injection.
The rulings of the Supreme Court place a tremendous burden on death row convicts and their attorneys.
Many states used to execute prisoners on death row with a three-drug cocktail. First, the convict would be given sodium thiopental, a local anesthetic that would keep them from experiencing the effects of the chemicals that would kill them. After that, the convict would be given a paralytic medicine, followed by a fatal drug that would stop their heart.
But, at least for executioners, supplies of sodium thiopental dried up about 2010 — partly because pharmaceutical firms refused to supply the medicine for use in executions, and partly because the European Union prohibits corporations from exporting pharmaceuticals for that reason. As a result, several jurisdictions have resorted to using less effective sedatives.
As a result, executions were bungled, and convicts were shown to be in agonizing suffering throughout their executions. These defective execution medicines subject death row convicts to “what may well be the chemical equivalent of being roasted at the stake,” as Sotomayor observed in a 2015 dissenting decision.
The Republican majority on the Supreme Court, on the other hand, has shown little sympathy for detainees who seek not to be tortured to death. The Court has concluded, among other things, that a convict who opposes to one method of execution must propose an alternate method or their complaint will be dismissed. “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,” wrote Justice Neil Gorsuch for the Court in Bucklew v. Precythe (2019).
Meanwhile, some jurisdictions have responded by approving new ways of death in response to these advances. For example, South Carolina recently passed legislation making electrocution the state’s default method of death and allowing some convicts to be killed by firing squad.
In the meanwhile, Alabama established a statute that permits prisoners on death row to opt for a method of execution other than lethal injection if they act within a certain amount 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 specialists feel nitrogen hypoxia is far less painful than fatal injection, particularly if the state lacks trustworthy anesthetics. Although it is hard to run an ethical experiment on real individuals to see if one technique of murdering is less painful than another, for obvious reasons.
The legal problem in Hamm is around a paper form that the state provided to inmates, allowing 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.” Reeves, on the other hand, had “cognitive limits.” 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 ruled that the state had to help Reeves understand the document before he could be executed under the Americans With Disabilities Act. However, five justices allowed Alabama to proceed with the execution — and to do it by lethal injection — in a two-sentence opinion that provides no justification for their decision.
Cruel and Unusual
Your skin is definitely crawling right now if you’ve read this far.
“Cruel and unusual punishments” are meant to be prohibited under the Eighth Amendment. However, the Supreme Court has ruled that the death penalty has super-constitutional standing, requiring executions to go place even if there is no means to do so in a humane manner.
Glossip v. Gross (2015), one of numerous Supreme Court judgments dealing with the lack of safe anesthetics for use in executions, came to this conclusion. “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 logical error at issue in Alito’s judgment is known as “begging the question.”)
So, if the sole option for murdering a death row convict is to use “the chemical equivalent of being burnt at the stake,” Glossip’s solution is to carry out the execution nevertheless.
Furthermore, some judges have stated that they have a distinct, more personal rationale for refusing death row convicts reprieve. As the execution date approaches, the inmate’s attorneys often submit a flurry of papers in an attempt to spare their client’s life — or, at the the least, to make the execution less painful. This last-minute lawsuit frequently entails difficulties that neither the lawyers nor the client could have fairly anticipated. In one case, for example, an inmate was not informed of essential elements of the prison’s execution protocol until two weeks before his death.
However, many of the judges appear to be concerned by the fact that they must deliberate on these last-minute appeals, which may arrive on a night when a justice has other arrangements. Gorsuch argued in Bucklew that “last-minute stays should be the absolute rarity,” and that death row convicts and their attorneys are “manipulating” the system.
Several justices recently complained during an oral argument about the religious liberties of death row inmates that if the Court upheld the inmate’s particular application of the First Amendment rights 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.”
Given the severity of murdering another human being, one may believe that the courts should pay extra attention to death sentence cases, if only because an execution can never be overturned if a court subsequently determines that it was unconstitutional or unjustifiable. This Supreme Court, on the other hand, does not share that viewpoint.