Hamm vs. ReevesA death penalty order the Supreme Court issued Thursday night is the epilogue to a long-running tension between drug companies that don’t want their products used to kill people, and states that are willing to use unreliable drugs to carry out executions if effective sedatives are not available.

It is also disturbingly cruel.

The outcome of the Court’s 5-4 decision in Ham 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 for a less painful method of execution.

There is significant evidence that Matthew Reeves, a man convicted of murder who the state of Alabama executed after the Supreme Court cleared him to do so on Thursday, had an intellectual disability. Among other things, as Judge Sonia Sotomayor noted in a 2021 dissenting opinion, a state-employed expert administered an IQ test to Reeves and determined that “Reeves’ IQ was well within the range intellectual disability”.

The Supreme Court ruled in Atkins v. Virginia (2002) that “death is not an appropriate punishment” for a person with an intellectual disability. Nevertheless, in its 2021 decision in Dunn v. Reevesthe Supreme Court voted along party lines to effectively prevent Reeves from avoiding execution.

The question in Ham, the Court’s decision on Thursday evening, is quite narrow. After Dunn, it was no longer a question of whether Alabama could execute Reeves. The only question was How? ‘Or’ What Alabama could carry out that execution — and if the state was allowed to use a method that could very well amount to torture, even over Reeves’ objection.

This time the Court split 5-4, with Justice Amy Coney Barrett moving on 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.

Supreme Court decisions place a terrible burden on death row inmates and their lawyers

Many states used to use a combination of three drugs to execute death row inmates. First, the inmate was injected with sodium thiopental, an anesthetic that was supposed to keep the inmate from feeling the effects of drugs that would kill him. The inmate would then be injected with a paralyzing drug, and finally a deadly drug that would stop his heart.

But supplies of sodium thiopental dried up, at least for executioners, around 2010 – partly because pharmaceutical companies refused to sell the drug for executions, and partly because the European Union banned companies from export drugs for this purpose. As a result, some states have turned to less reliable sedatives.

The result was botched executions, where inmates visibly suffered excruciatingly 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 Republican majority on the Supreme Court has shown little sympathy for inmates demanding not to be tortured to death. Among other things, the Court ruled that an inmate who objects to one form of execution must suggest another method or his objection will fail. As Judge Neil Gorsuch wrote for the Court in Bucklew v. Precythe (2019), “a prisoner must show a feasible and easily 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”.

In the meantime, some states have reacted to these developments by allowing new methods of execution. South Carolina, for example, recently enacted a law making electrocution the default method of execution in that state and also allowing some inmates to be executed by firing squad.

Alabama, meanwhile, has passed a law that theoretically allows death row inmates to choose a method of execution other than lethal injection, but only if they act within a very short period of time. As Judge Elena Kagan describes this Alabama law in her dissenting opinion in Ham“a recently enacted state law gave such inmates one month to choose 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 is impossible to conduct an ethical experiment on real people to determine whether one method of killing is less painful than others.

The specific legal issue Ham concerns the paper form that the State gave to inmates, which allowed them to choose nitrogen hypoxia rather than lethal injection. As Kagan notes, “The form was written in legalese, and according to compelling evidence, an inmate needed at least grade 11 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’ reading comprehension was at 1st grade level’.”

A lower court determined that under the Americans With Disabilities Act, the state had to help Reeves understand the form before he could be executed. But five judges, in a two-sentence order that offers no explanation of why they made the decision, allowed Alabama to continue with the execution — and to do so using a 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 punishment.” But the court ruled that the death penalty enjoys a sort of super-constitutional status that requires executions to continue, even if there is no way to carry them out humanely.

It was the outfit Glossip vs Gross (2015), one of several Supreme Court decisions addressing the shortage of reliable anesthetics for use in executions. “Because capital punishment has been established as constitutional,” Judge Samuel Alito wrote for the court in glossip, “it necessarily follows that there must be a [constitutional] way to achieve it. (The name of the logical error exposed in Alito’s opinion is “supplementing the question.”)

So if the only method available to kill a death row inmate is “the chemical equivalent of being burned at the stake”, glossipThe answer to this dilemma is to allow execution to occur anyway.

Moreover, several judges indicated that they had a different, more personal reason for denying assistance to death row inmates. As an execution approaches, attorneys representing the inmate typically file a series of petitions aimed at saving their client’s life – or, at least, making the execution less painful. Often, this last-minute litigation involves issues that neither the attorneys nor the client could reasonably have known about in advance. In one case, for example, a prison did not inform an inmate of the main details of its execution policy until about two weeks before his execution.

But many judges seem quite bothered by having to decide those last-minute appeals, which can come to court on a night when a judge has other plans. In Loop, Gorsuch complained that “last-minute stays should be the extreme exception”, and he claimed that death row inmates and their lawyers engaged in “manipulation” of the system.

More recently, during oral argument regarding the religious freedoms of death row inmates, several judges complained that if the Court honored the particular application of the inmate’s First Amendment rights in this case, it would open the floodgates to future disputes to assert similar rights. As Judge Brett Kavanaugh complained to the inmate’s attorney, “if we rule in your favor in this case, that will be an important part of our role for years to come.”

One would think that, given the seriousness of killing another human being, courts should pay particular attention to death penalty cases – if only because an execution can never be reversed if a court later discovers that it was illegal or unwarranted. But that is not the attitude of this Supreme Court.