It has been 20 years since a landmark judgement declared the execution of persons with demonstrated intellectual impairment in the US unlawful. The Supreme Court ruled in the landmark case of Atkins v. Virginia in 2002 that executions of mentally ill people should never take place, since the nation's standards of decency had advanced. This followed the agreement of thirty states to abolish the death penalty entirely or to bar its application to people with intellectual disability. Despite these constitutional victories, a new untested method of execution (death by Nitrogen Hypoxia) brings with it new constitutional challenges, specifically for mentally disabled defendants.
SUPREME COURT ON THE RIGHTS OF THE MENTALLY DISABLED DEFENDANTS
Atkins was an unprecedented decision that created a categorical exemption of executing those with proven intellectual disabilities. This ruling carried forward a view the Supreme Court had adopted in Penry v. Lynaugh in 1989, where the court decided that intellectual disability was so important to the trial process, it had to be a mitigating factor that may lessen a defendant’s culpability for a capital offence. The Atkins decision further compounded this precedent by affirming that states cannot refuse to allow jury members to consider it as a mitigating factor, and when successfully proven, cannot allow the defendant to be executed. Atkins had by and large represented ‘a much broader social and professional consensus’ that it cannot be appropriately and decently carried out when its victims are less culpable for their crimes.
Defendants who are intellectually disabled are not fully culpable for their crimes because they lack, to some degree, the full capacity to reflect on their actions. As aptly put by Justice Steven’s opinion in Atkins, “Their deficiencies do not warrant an exemption from criminal sanction but diminish their personal culpability”. Reading the opinion of the court here, Justice Steven had correctly identified that while defendants with mental disabilities frequently have some capacity to recognise and understand the difference between right and wrong (and therefore are competent to stand trial), they hold diminished capacities regarding adaptive skills. This may mean that during the time of the crime, defendants may have had trouble engaging in logical reasoning, and controlling their reactions and impulses. In recognising and making allowances for these mitigating factors, the Supreme Court rightly recognised that intellectually disabled defendants hold less culpability for their crimes, and consequently, do not merit one of the most severe forms of punishments that the criminal justice system can impose on offenders.
NEW FORM OF EXECUTION: NITROGEN HYPOXIA
That being said, a newly minted, albeit untested method of execution, loosely termed nitrogen hypoxia executions already pose numerous issues towards defendants who are intellectually disabled. Nitrogen hypoxia is a method of suffocating the victim by forcing them to breathe in pure nitrogen (either by way of a gas chamber or an airtight mask placed over the prisoner’s face where nitrogen will be pumped in). Essentially, it deprives the body of the oxygen needed to function, and the prisoner will pass out in minutes and die when the blood circulation stops in the heart, according to Joel Zivot, an associate professor of anaesthesiology at Emory University, who was interviewed regarding this new form of nitrogen execution.
Its proponents argue the method may be more ‘humane’ because it allows the prisoner to slip into a peaceful state of unconsciousness before dying. However, there is no way to validify this claim, because there is no ethical metric to test the level of suffering it causes. As DPIC’s Executive Director Robert Dunham correctly comments, “no one has any idea whether it is going to work the way its proponents say it will.” The problem still is the fact that there is no requirement for a state to demonstrate that a certain method of execution is not ‘cruel and unusual punishment’ pursuant to the Eighth Amendment of the US Constitution. As of right now, the procedure is authorised in Oklahoma, Alabama, and Mississippi, mainly due to the reoccurring issues that have recently compounded in using lethal injections for executions. Lethal injection has been the standard method of implementing capital punishment in the US since the 1990s. However, drug manufacturers have protested lethal injection since its conception, not wanting their products to be used and associated with killing. Following a ruling by the District court for the District of Columbia it was essentially declared that the US Food and Drug Administration could no longer allow the drug to be imported from overseas for the purpose of execution.
CHALLENGES IN IMPLEMENTATION: THE CASE IN ALABAMA
States, fumbling for another method of execution, decided to implement it by nitrogen hypoxia. Alabama was one of the first states to legalise the executions, and in 2018, gave prisoners a short period of 30 days to authorise nitrogen hypoxia as the designated means of execution by filling out a form issued by the Alabama Department of Corrections (ADOC). This form has led to executions going against the Americans with Disabilities Act.
The case of Willie B. Smith III here is pertinent. He was executed on October 21st, 2021 with lethal injection. The execution came after the Supreme Court had summarily decided to overturn his verdict from a lower federal court ruling. The court denied him the choice to be executed via nitrogen hypoxia since it violated his rights under the Americans with Disabilities Act. Initially in 2019, the US Court of Appeals for the Eleventh Circuit had agreed that Smith was intellectually disabled under accepted medical criteria and that imposing the death penalty would be unconstitutional. Nonetheless, the circuit court had upheld Smith’s death sentence on the ratio that the Supreme court’s decision had not been decided at the time of Smith’s initial appeal in the case. Smith’s council had alleged that due to his intellectual disability, he was not able to designate nitrogen hypoxia as his method of death within the 30-day window. Smith had argued that the Americans With Disabilities Act required Alabama to make reasonable accommodations for his intellectual disabilities and by not doing so, executing him by any other method other than nitrogen hypoxia (which he would have designated for himself) was unconstitutional.
Aside from Smith, Matthew Reeves was also another prisoner who was executed on January 27th, 2022, vacating an injunction issued by a federal district court and summarily upheld by the US Court of Appeals (11th Circuit). Reeves was another case that garnered controversy because it had been established that his intellectual functioning fell within the range of intellectual disability. Alongside these issues, he also had literacy impairments, including reading at a first grade level. Because the form requires an average 11th grade reading level, and Reeves’s deficits prevented him from understanding and interpreting the form within the allocated time frame, the ADOC failed to provide Reeves with any assistance in explaining the form. Reeves’ counsel alleged that this failure violated his rights under the Americans with Disabilities Act. His counsel alleges he would have opted for death by nitrogen hypoxia, instead of the lethal injection which he got by default. Whilst this claim succeeded at first instance, a July 2021 ruling summarily reversed the injunction against Reeves’s execution, without explanation. Justice Sotomayor was correct in asserting that this decision, like Smiths, “continues a troubling trend in which this court strains to reverse summarily any grants of relief to those facing execution.”
CHALLENGES AHEAD: THE FAILED EXECUTION OF ALAN MILLER
The latest shift in these super conservative supermajority cases reversing lower federal court decisions without deference was, the failed execution attempt of Alan Miller on September 22nd, 2022. In a sworn affidavit in the US District Court for the Middle District of Alabama on September 15th, 2022, Alabama Department of Corrections Commissioner John Q. Hamm confirmed Miller’s execution by lethal injection. This came after a lawsuit brought by Miller seeking to bar his execution by lethal injection and only execute him via nitrogen hypoxia. This claim had failed in the last instance with a last minute decision from the Supreme Court [5-4 decision] to move forward with his execution by lethal injection. This resulted in a botched execution whereby Miller’s execution was called off at about 11:30 p.m. when prison officials decided that they could not establish an intravenous line before the death warrant expired at midnight. This inclination indicates the US Supreme court’s tendency to continue to tread a troubling path in which it reserves summarily and without deference, any grants of relief to those facing executions.
These case studies bring forward a particularly troubling inequity within the US court system: that the newly minted method of execution brings with it a compressed timeline for notifying prisoners of their choices and the haphazard approach of doing so. Whilst the untested method of nitrogen hypoxia warrants debate on itself, the fact that no assistance is provided for those facing executions to choose the method in which they die, is yet another blow to the dignity of intellectually disabled prisoners within the skewed American legal system.
Joyce is currently a 2nd-year student at the University of Manchester, pursuing an LLB. She is keenly invested in the documentation of Human Rights issues, with a specific interest in the rule of law, constitutional law, and transitional justice.