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The death penalty

Since 1976, the U.S. has executed 1,542 people. There are currently 27 states with the death penalty, though not all have recently carried out executions: Alabama, Arizona, Arkansas, California, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, and Wyoming. Three of these states have a gubernatorial moratorium on executions: California (as of 2019), Oregon (as of 2011), and Pennsylvania (as of 2015).

16 people have been executed by the federal government since 1988, with 13 of those occurring under the presidency of Donald Trump.

88% of those executed by states were killed by lethal injection, a method wherein the inmate is given a fatal combination of chemicals via intravenous and/or intramuscular injection. Most states use three drugs during a lethal injection: The first is supposed to anesthetize inmates (Sodium thiopental or pentobarbital); the second paralyzes them (Pancuronium bromide); the third stops the heart (Potassium chloride). Due to pharmaceutical companies refusing to provide drugs for lethal injections, some states have changed their protocol to include other chemicals like midazolam (for sedation) and hydromorphone (an opiate, to stop the heart/lungs).

Lethal injection was initially perceived as a more humane, pain-free method of execution compared to hanging, electrocution, and firing squads. However, that idea is now being questioned through the examination of autopsy reports of executed individuals. Two doctors found evidence of pulmonary edema, which can induce the feeling of suffocation or drowning, in about three-quarters of more than three dozen autopsy reports.

“I began to see a picture that was more consistent with a slower death,” [Dr. Joel Zivot] says. “A death of organ failure, of a dramatic nature that I recognized would be associated with suffering.”

In some cases, there was even froth and foam in the airways: “Frothy fluid present in the lower airways,” read one report. The froth was a clue: It meant that the inmates were still alive and trying to breathe as their lungs filled with fluid, because froth could form only if air was still passing through the lungs. It also meant that the pulmonary edema was being caused by the first drug given during a lethal injection, since the second drug, a paralytic, stops the inmate’s breathing altogether.

With this in mind, it is questionable that the Supreme Court allows executions at all. The U.S. is the only western first world nation to embrace capital punishment. The nations that have executed more people in the past year than the U.S. include China, Iran, Egypt, and Saudi Arabia.

Now, take into account who the U.S. has executed in the past year: Of the 13 inmates, more than half were black men. All but four had documented evidence of intellectual disabilities and/or mental illness. And the cases of three men were tainted by questionable tactics, either during trial or during sentencing.

12 of those executed in the past year petitioned the Supreme Court for a stay of execution.

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Michael Reeves

Last Thursday, the U.S. Supreme Court gave its stamp of approval to Alabama’s execution of Matthew Reeves, an intellectually disabled black man on death row. Reeves was convicted of capital murder for taking part in the killing of a man during a 1996 robbery.

The state informed Reeves, as well as all other death row inmates, that they had a right to choose nitrogen hypoxia as their method of execution instead of lethal injection. To do so, inmates were required to read, interpret, and sign a legal document with no assistance—even those with intellectual disabilities like Reeves.

This benefit was provided to all death row prisoners but with no reasonable accommodations to persons, like Mr. Reeves, with open and obvious disabilities. The [Alabama Department of Corrections] did not provide even minimal assistance or information.

Both the district court and appeals court found that the state likely violated the Americans with Disabilities Act by forcing lethal injection upon Reeves without providing him assistance in selecting nitrogen hypoxia.

The Supreme Court decided 5-4 that the lower courts were wrong and Alabama could ignore the inmate’s method of execution preference. Justice Amy Coney Barrett joined with the three liberal justices in dissent.

Kagan highlighted the obstacles Reeves faced (pdf), as well as the injustice in executing an intellectually disabled person (contra Supreme Court precedent in 2002 Atkins v. Virginia):

…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 has cognitive limitations and (again, according to uncontested evidence) has the same reading ability as an elementary-school child; indeed, one expert testified that Reeves’s “reading comprehension was at the 1st grade level.”

Reeves was put to death via lethal injection, despite an uncontested intellectual disability, hours after the high court’s order was released.

• Note, last year the Supreme Court overruled the 11th Circuit Appeals Court decision that vacated Reeve’s death sentence. “The lengths to which this Court goes to ensure that Reeves remains on death row are extraordinary,” Justice Sonya Sotomayor wrote (pdf).

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Donald Grant

Oklahoma has put to death its third inmate following a six-year hiatus due to botched lethal injections. Donald Grant, a black man convicted of murder 20 years ago, was executed last month using the same drug combination that caused visible suffering during a previous execution.

Grant’s death comes after the Supreme Court denied his request for a stay of execution in a two-sentence, unsigned order. He and fellow death row inmate Gilbert Postelle requested that they be executed by firing squad, arguing that it would be less painful than lethal injection using midazolam, which was responsible for the botched execution of John Grant. Postelle is scheduled to be killed on February 17th.

Grant was diagnosed with schizophrenia and brain damage, stemming from a severely abusive childhood.

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A death list

Corey Johnson: An intellectually disabled black man executed by the federal government in January 2021. Justices Kagan and Sotomayor dissented.

Lisa Montgomery: A white woman with documented brain damage and mental illness, executed by the federal government in January 2021. Numerous lower courts issued stays, which the Supreme Court overruled. Breyer, Sotomayor, and Kagan dissented.

In a series of letters delivered to administration officials and released to the public by Montgomery’s lawyers on November 11, 2020, the advocates argue that Montgomery’s serious mental illness, brought on by a horrific history of sexual violence, physical abuse, and being sexually trafficked as a child, and exacerbated by abusive conditions of death-row confinement, make it inappropriate for the government to execute her. The letters were submitted by 43 current and former prosecutors, 800 organizations and individuals involved in efforts to combat violence against women, 100 organizations and individuals involved in anti-human trafficking efforts, 40 child advocates, 80 formerly incarcerated women, and jointly by the National Alliance on Mental Illness, Mental Health America, and the Treatment Advocacy Center.

Dustin Higgs: A black man, with Covid, executed by the federal government in January 2021. Because the death penalty does not exist in the state where Higgs was convicted and sentenced (Maryland), the government fought to have him executed under Indiana law, where all federal death-row inmates are held. This violated the Federal Death Penalty Act. Furthermore, Higgs did not pull the trigger in his crimes; the man who pulled the trigger only received a life sentence. Breyer, Sotomayor, and Kagan dissented (pdf).

…Sotomayor: the Court has allowed the United States to execute thirteen people in six months under a statutory scheme and regulatory protocol that have received inadequate scrutiny, without resolving the serious claims the condemned individuals raised. Those whom the Government executed during this endeavor deserved more from this Court. I respectfully dissent.

Quintin Jones: An intellectually disabled black man with a history of addiction, executed by Texas in May 2021 despite the victim’s family advocating for clemency. Strikingly, Gov. Greg Abbott granted clemency to a white man in a similar situation in 2018. The Supreme Court denied his petition for a stay of execution in an unsigned opinion. Texas did not allow any media to witness his execution.

John Hummel: A mentally ill white man executed by Texas in June 2021, despite obviously ineffective counsel. His lawyer, Larry Moore, presented no evidence about Hummel’s PTSD from his military service and failed to rebut evidence presented by the prosecution. Moore then went on to work as a prosecutor for the very office that fought to have his client executed. The Supreme Court declined to hear his case.

Retired U.S. Navy Captain Art Cody, the Director of Criminal Programs at the Veteran Advocacy Project: “What we ask of our servicemen often gives rise to their mental illness which, when not properly treated, lands them on our death rows.”

Rick Rhoades: A white man with brain damage executed by Texas in September 2021. His lawyers asked for a stay of execution in order to investigate claims that two potential jurors were struck from the panel in a discriminatory manner. The Supreme Court denied his bid.

Ernest Johnson: A 61-year-old intellectually disabled black man executed by Missouri in October 2021. Former Missouri Governor Bob Holden, former Missouri Supreme Court Judge Michael Wolff, and Pope Francis advocated for clemency.

Wolff: “When I heard Mr. Johnson’s appeal as one of the seven judges of the Supreme Court of Missouri 13 years ago, the evidence was strong that Mr. Johnson was ineligible for the death penalty on account of intellectual disability.” The U.S. Supreme Court denied Johnson’s petition for a stay of execution in a two sentence unsigned order.

Willie Smith: An intellectually disabled black man executed by Alabama in October 2021. Like Reeves, Smith was not given assistance to understand the forms required to choose nitrogen hypoxia instead of lethal injection as his execution method. The Supreme Court denied Smith’s petition for a stay of execution. “Alabama does not dispute that Willie Smith has significantly below-average intellectual functioning,” Justice Sotomayor wrote in dissent.

John Grant: A black man executed by Oklahoma in October 2021. The Supreme Court ruled 5-3 to vacate a stay issued by the 10th Circuit Court of Appeals. Grant attempted to challenge the state’s injection protocol, arguing that the use of midazolam as a sedative was untested and potentially ineffective. His concerns were belatedly proven correct: Witnesses describe Grant convulsing and vomiting before death.

“Based on the reporting of the eyewitnesses to the execution, for the third time in a row, Oklahoma’s execution protocol did not work as it was designed to,” said Dale Baich, one of the attorneys for the death-row plaintiffs. “This is why the Tenth Circuit stayed John Grant’s execution and this is why the U.S. Supreme Court should not have lifted the stay. There should be no more executions in Oklahoma until we go trial in February to address the state’s problematic lethal injection protocol.”

Bigler Stouffer: A 79-year-old mentally ill white man executed by Oklahoma in December 2021, despite the Oklahoma Pardons and Parole board voting 3-2 to recommend clemency. The Supreme Court denied his application for a stay of execution in a one-sentence unsigned order.

David Cox: The only executed inmate the past year who did not apply for a stay from the Supreme Court.

Donald Grant: See section above

Matthew Reeves: See section above