On Thursday the United States Supreme Court gave Alabama the go-ahead to execute Matthew Reeves, an intellectually disabled death row inmate. His execution was carried out by lethal injection just a few hours later, even though Reeves wanted to be put to death by nitrogen hypoxia.
It’s hard to know which is worse: that they executed an intellectually disabled man in the first place or that they ignored his wish to avoid dying by lethal injection.
The state contends that it actually gave him and everyone else on the state’s death row that grotesque choice in a kind of “speak now or forever hold your peace” ritual. Last June, it says all of them were marched out of their cells and into the prison yard at Alabama’s William C. Holman Correctional Facility.
There they heard a surprising presentation. They allegedly were told that they could take advantage of a law enacted in March, 2018 authorizing nitrogen hypoxia as an execution method. They could thus choose the method the state would use to kill them.
If they wanted to opt for nitrogen hypoxia, they had to inform the prison warden “in writing.”
Last week Alabama announced that it expects to be able to start executing the death row inmates who chose nitrogen suffocation “within months.”
How did we get to the point where death row inmates could face the cruel choice that was supposedly offered to Reeves and others in the Holman prison yard? And what does it indicate about methods of execution in this country?
The short answer to both of these questions is that the U.S. is in a methods of execution mess unlike any in its history.
The major method of execution in use today, lethal injection, has encountered countless problems and left states scurrying to both keep it going and identify other methods of execution in case they are unable to do so.
On the June day when the state says that Reeves was offered his choice, it was not clear whether officials were in fact required even to notify the people on death row about their right to opt out of dying by lethal injection.
Nevertheless, Cynthia Stewart, the Holman warden, did so anyway. She ordered that each death row inmate be given a form to indicate their preferred execution method. If they did not fill out or return it, they would waive the choice of nitrogen hypoxia.
Death row inmates supposedly were told they had five days to return the request form if they wanted to avoid execution by lethal injection. But the form they were given was almost incomprehensible because of its dense legalese.
In his suit, Reeves said that he and other inmates were haphazardly handed the form while inside their cells by either a corrections officer or an inmate hall runner and were offered little or no instruction.
Because of his intellectual disability, Reeves did not understand what he was being asked to do. He ultimately sued, claiming that the state had failed to discharge its duty to provide a reasonable accommodation for him under the Americans with Disabilities Act.
During most of our history, Reeves would have had no such choice. Until recently, states used only one execution method at a time.
In the earliest years of the Republic, hanging was the predominant method used by governments and by vigilantes alike. But after a series of gruesome botched hangings in the late 19th century, most states turned away from it and adopted first the electric chair and then the gas chamber. Utah was an outlier in its use of the firing squad.
In the mid-20th century, history repeated itself with another string of botched executions, only this time it was both electrocution and gassing that came under critical scrutiny.
In 1977, Oklahoma became the first state to give up the electric chair in favor of lethal injection. Five years later Texas was the first state to use it, when it put Charles Brooks, Jr. to death.
From then to 2010, lethal injection was the execution method of choice in death penalty states across the country. In addition, every lethal injection during that period was carried out using the same three-drug cocktail: sodium thiopental to anesthetize the inmate, pancuronium bromide to paralyze them, and potassium chloride to stop their heart.
Since then, the lethal injection paradigm has come undone as drug shortages have forced states to experiment with previously untested drugs and drug combinations. By the end of 2020, states had used at least ten distinct drug protocols in their executions. Some were used multiple times, while some were used just once. The traditional three-drug protocol has been all but forgotten.
With its retreat, the already high incidence of botched lethal injections has increased further.
Still lethal injection remains the primary execution method in all but one death penalty state, but many of them also have revived previously discredited methods of execution or turned to new and untested ones like nitrogen hypoxia.
In 2021, South Carolina became the first state to depart from using lethal injection as its primary execution method. It is the only state in which electrocution plays that role, with firing squad and lethal injection, authorized by statute as secondary methods of execution.
Today eight states (Alabama, Arizona, Florida, Kentucky, Mississippi, Oklahoma, South Carolina, and Tennessee) include the electric chair among their available methods of execution. Seven states (Alabama, Arizona, California, Mississippi, Missouri, Oklahoma, and Wyoming) allow for the use of lethal gas. One, New Hampshire, still permits hanging. And four states (Mississippi, Oklahoma, South Carolina, and Utah) now authorize the firing squad as an alternative to lethal injection.
In most of those states, the alternatives are available only if lethal injection is declared unconstitutional or is otherwise unavailable.
But six states (Arizona, California, Florida, Kentucky, South Carolina, and Tennessee) in addition to Alabama allow death row inmates to choose an execution method.
While the Supreme Court’s cavalier dismissal of Reeve’s case was shocking, given the embrace of capital punishment by its conservative members, it was not surprising. The Court has contributed mightily to the current methods of execution mess by giving states wide latitude in deciding how to kill people. Going back to the late 19th century, it has never confronted a method of execution of which it didn’t approve.
In a series of cases starting in 2007, the Court has given its blessing to lethal injection and refused to say whether any drugs and drug combinations would not pass constitutional muster.
Chief Justice John Roberts and Justices Neil Gorsuch and Clarence Thomas in particular have led the way in telling a comforting, if distorted, story of progress about America’s methods of execution. As they tell it, that story reveals the sincere commitment of death penalty states to provide ever more “humane” treatment of death row inmates.
The truth is that the words humane and execution do not belong in the same sentence, no matter what method is used when the state kills.
There was certainly nothing humane about the choice that Matthew Reeves faced last June, a choice between being strapped to a gurney while lethal chemicals paralyzed him and stopped his heart, or suffocating while he inhaled noxious gas.
And there was certainly nothing humane about the Court’s indifference to whether he could even understand the horrible choice that was offered to him.