Divided Supreme Court Vacates Injunction, Permits Alabama to Execute Intellectually Disabled Prisoner

A divid­ed U.S. Supreme Court vot­ed 5 – 4 on January 27, 2022 to allow Alabama to exe­cute an intel­lec­tu­al­ly dis­abled death-row pris­on­er, vacat­ing an injunc­tion issued by a fed­er­al dis­trict court on January 7 and unan­i­mous­ly upheld by a pan­el of the U.S. Court of Appeals for the Eleventh Circuit on January 26. 

In a deci­sion ren­dered 1½ hours after the exe­cu­tion of Matthew Reeves was sched­uled to begin, the five con­ser­v­a­tive male jus­tices on the Court vot­ed, with­out expla­na­tion, to let the exe­cu­tion pro­ceed. Reeves’ exe­cu­tion by three-drug lethal injec­tion began at 9:03 p.m. Central time — three hours after its sched­uled start time — and he was pro­nounced dead 21 min­utes lat­er. It was the sec­ond exe­cu­tion of 2022 in the U.S. and the sec­ond of the day. Oklahoma exe­cut­ed Donald Grant, also by lethal injec­tion, eleven hours earlier. 

Reeves case gen­er­at­ed con­tro­ver­sy because psy­cho­log­i­cal test­ing estab­lished that his intel­lec­tu­al func­tion­ing fell with­in the range that qual­i­fied for a diag­no­sis of intel­lec­tu­al dis­abil­i­ty and he had sig­nif­i­cant impair­ments in func­tion­ing, includ­ing read­ing at a first-grade lev­el. The U.S. Supreme Court ruled in 2002 that ​“death is not a suit­able pun­ish­ment” for those with intel­lec­tu­al dis­abil­i­ty. A fed­er­al appeals court had over­turned his death sen­tence in part because his tri­al lawyer failed to present expert tes­ti­mo­ny on his intel­lec­tu­al dis­abil­i­ty, but the Supreme Court in 2021 reversed that decision.

After Alabama amend­ed its law to pro­vide for exe­cu­tion by nitro­gen hypox­ia — gas suf­fo­ca­tion — as an alter­na­tive to lethal injec­tion, the Alabama Department of Corrections (ADOC) dis­trib­uted a form to death-row pris­on­ers requir­ing them to choose between the two. According to expert tes­ti­mo­ny, the form required an 11^th grade read­ing lev­el to under­stand. ADOC did not pro­vide pris­on­ers any assis­tance in explain­ing the con­tent of the form or how to fill it out. When Reeves, who has an IQ in the upper 60s to low 70s, did not fill out the form, pros­e­cu­tors sought and obtained a death war­rant sched­ul­ing his exe­cu­tion by lethal injec­tion. No one who elect­ed nitro­gen suf­fo­ca­tion was sched­uled for execution.

Reeves’ lawyers alleged that he would have opt­ed for exe­cu­tion by nitro­gen gas and that Alabama’s fail­ure to offer him accom­mo­da­tions for his intel­lec­tu­al dis­abil­i­ty vio­lat­ed his rights under the Americans with Disabilities Act (ADA). After review­ing thou­sands of pages of doc­u­ments and con­duct­ing a sev­en-hour hear­ing that includ­ed tes­ti­mo­ny from prison offi­cials and a defense men­tal health expert, the dis­trict court con­clud­ed that Reeves had demon­strat­ed a sub­stan­tial like­li­hood that he would suc­ceed on his ADA claim. The court issued a pre­lim­i­nary injunc­tion bar­ring the state ​“from exe­cut­ing [Reeves] by any method oth­er than nitro­gen hypox­ia before his [ADA] claim can be decid­ed on its mer­its.” On appeal, a three-judge pan­el of the Eleventh Circuit unanimously agreed.

Justice Elena Kagan, in a dis­sent joined by Justices Stephen Breyer and Sonia Sotomayor, wrote: ​“Four judges on two courts have decid­ed — after exten­sive record devel­op­ment, brief­ing, and argu­ment — that Matthew Reeves’s exe­cu­tion should not pro­ceed as sched­uled tonight. The law demands that we give their con­clu­sions def­er­ence. But the Court today dis­re­gards the well-sup­port­ed find­ings made below, con­sign­ing Reeves to a method of exe­cu­tion he would not have cho­sen if prop­er­ly informed of the alternatives.”

Justice Amy Coney Barrett, who has an intel­lec­tu­al­ly dis­abled child with Down syn­drome, sep­a­rate­ly dis­sent­ed without opinion.

The Supreme Court’s Inconsistent Rulings Consistently Facilitating Executions

The Court’s action is the lat­est in a string of deci­sions in which the con­ser­v­a­tive super­ma­jor­i­ty has, on the one hand, stressed the need to defer to state court deci­sions when revers­ing low­er fed­er­al court orders that had over­turned death-row pris­on­ers’ cap­i­tal sen­tences and, on the oth­er hand, sub­sti­tut­ed its judg­ment for the factfind­ing of low­er courts to vacate stays and pre­lim­i­nary injunc­tions fed­er­al dis­trict and cir­cuit courts had issued to halt or delay exe­cu­tions. During the fed­er­al government’s six-month exe­cu­tion spree from July 2020 through January 2021, the Court repeat­ed­ly inter­vened to facil­i­tate exe­cu­tions, despite numer­ous dis­put­ed issues of mate­r­i­al fact and unre­solved nov­el issues of law. Since Justice Ruth Bader Ginsburg’s death in 2020, the Court has not grant­ed or upheld any stay of exe­cu­tion for any rea­son oth­er than the free exer­cise of reli­gion dur­ing the course of an execution.

In a July 2021 rul­ing ren­dered along par­ti­san lines with­out ben­e­fit of oral argu­ment, the con­ser­v­a­tive super­ma­jor­i­ty sum­mar­i­ly reversed an Eleventh Circuit deci­sion that had over­turned Reeves’ death sen­tence. That rul­ing prompt­ed a sharp dis­sent from Justice Sotomayor, who wrote, “[t]he lengths to which this Court goes to ensure that Reeves remains on death row are extra­or­di­nary.” The deci­sion, she said, ​“con­tin­ues a trou­bling trend in which this Court strains to reverse sum­mar­i­ly any grants of relief to those fac­ing exe­cu­tion. This Court has shown no such inter­est in cas­es in which defen­dants seek relief based on com­pelling show­ings that their con­sti­tu­tion­al rights were vio­lat­ed. In Reeves’ case, this Court stops the low­er court from grant­i­ng Reeves’ peti­tion by adopt­ing an utter­ly implau­si­ble read­ing of the state court’s deci­sion. In essence, the Court turns ​‘def­er­ence’ into a rule that fed­er­al habeas relief is nev­er avail­able to those facing execution.”

Following the Court’s order vacat­ing the exe­cu­tion injunc­tion, Reeves’ lawyer, assis­tant fed­er­al defend­er John Palombi, issued a state­ment say­ing ​“It is dis­ap­point­ing and dis­heart­en­ing that the United States Supreme Court felt no need to explain its deci­sion to per­mit the exe­cu­tion of Matthew Reeves, despite the opin­ions of two fed­er­al courts which had issued and affirmed an injunc­tion against that exe­cu­tion.” Reeves, Palombi said, ​“is unques­tion­ably intel­lec­tu­al­ly dis­abled and unques­tion­ably functionally illiterate.”

“The immense pow­er of the State should be used to help its cit­i­zens, not to pre­vent them from exer­cis­ing their rights,” Palombi wrote. ​“The immense author­i­ty of the Supreme Court should be used to pro­tect its cit­i­zens, not to strip them of their rights without explanation.”

Alabama Says Protocol for Executions by Nitrogen Suffocation will be Ready ​‘Within Months’

The Supreme Court per­mit­ted Alabama to exe­cute Reeves imme­di­ate­ly by lethal injec­tion even though the state soon expects to be able to car­ry out exe­cu­tions by nitro­gen hypox­ia — the method Reeves’ lawyers said he would have des­ig­nat­ed. During oral argu­ment in the Eleventh Circuit on Reeves’ Americans With Disabilities Act claim, Alabama assis­tant attor­ney gen­er­al Richard Anderson told the court that Alabama will be ready to exe­cute pris­on­ers by nitro­gen suf­fo­ca­tion ​“with­in months,” and most like­ly before ​“the end of April or the begin­ning of May.” 

Although three states — Alabama, Mississippi, and Oklahoma — autho­rize exe­cu­tion by nitro­gen suf­fo­ca­tion, no one has been exe­cut­ed using that method in the United States. The method would kill a pris­on­er by fill­ing a room or a spe­cial breath­ing appa­ra­tus with pure nitro­gen, which would suf­fo­cate the pris­on­er by replac­ing the oxy­gen in their body. After the state adopt­ed the method in 2018, death-row pris­on­ers were giv­en a short peri­od of time to opt-in to the method. The state’s default method remains lethal injec­tion. In Mississippi and Oklahoma, nitro­gen suf­fo­ca­tion may be used if lethal injec­tion is found uncon­sti­tu­tion­al or is ​“unavail­able,” but those states do not give pris­on­ers the option to select the method and nei­ther has pro­mul­gat­ed a nitro­gen hypox­ia execution protocol.