LIFE-OR-DEATH LEGALESE: THE EXECUTION OF MATTHEW REEVES AND THE DIRE CONSEQUENCES OF POORLY TARGETED LEGAL DRAFTING

By: Earl Lin, Volume 107 Staff Member

It is a well-known phenomenon that lawyers often communicate in their own “peculiar language . . . characterized by antique jargon, pomposity, affected displays of precision, ponderous abstractions, and hocus-pocus incantations.”[1] Indeed, lawyers are so notorious for their clumsy writing that a whole cottage industry of gag gifts exists around this stereotype. For instance, upon matriculating to law school, this author was given a mug bearing a 161-word disclaimer warning, in part, that “‘[t]he Cup’ assumes no responsibility or liability for any errors or omissions in the content of this cup.”[2] The hallmark of this “legalese” is that “lay readers cannot readily comprehend” its meaning[3]—not because of any complex specialized concepts, but because of poor writing.[4]

Of course, legalese has its proper uses. For instance, it is prevalent in contracts and pleadings,[5] documents meant primarily for other attorneys. Used inappropriately, however, its misapplication can have dreadful results. In the case of Matthew Reeves, the poor use of legalese had perhaps the direst of consequences: it led to his execution by lethal injection.

I. THE EXECUTION OF MATTHEW REEVES

On January 27, 2022, the Alabama Department of Corrections (ADOC) executed Matthew Reeves by lethal injection.[6] Mr. Reeves’s preferred method of execution was not lethal injection, however, and under state law, he had had a right to choose nitrogen hypoxia as an alternative.[7] Why, then, had Mr. Reeves been executed by lethal injection? The answer lies in the unfortunate tale of a legal form, an inmate with limited literacy, and the United States Supreme Court.

On June 1, 2018, Alabama Act 2018-353 went into effect, giving ADOC death row inmates a single opportunity to opt for execution by nitrogen hypoxia instead of lethal injection. Inmates had until the end of the month to elect nitrogen hypoxia in writing.[8] At some point between June 26 and the June 30 deadline, the Warden of Holman Correctional Facility—where Mr. Reeves was on death row—obtained a nitrogen hypoxia election form created by the Federal Defenders for the Middle District of Alabama (Federal Defenders),[9] adopted it for the ADOC’s own use, and had it distributed to every Holman death row inmate.[10] The form read as follows:

ELECTION TO BE EXECUTED BY NITROGEN HYPOXIA

Pursuant to Act No. 2018-353, if I am to be executed, I elect that it be by nitrogen hypoxia rather than by lethal injection.

This election is not intended to affect the status of any challenge(s) (current or future) to my conviction(s) or sentence(s), nor waive my right to challenge the constitutionality of any protocol adopted for carrying out execution by nitrogen hypoxia.

Dated this ____ day of June, 2018.

[Name/Inmate Number]

[Inmate Signature][11]

Mr. Reeves did not return the form, thereby waiving his statutory opportunity to elect nitrogen hypoxia as his method of execution.[12]

On January 10, 2020, Mr. Reeves filed suit against the ADOC Commissioner and the Warden of Holman, alleging that the ADOC’s implementation of the nitrogen hypoxia election process violated his rights under the Americans with Disabilities Act (ADA). Mr. Reeves alleged that his “general cognitive limitations and severely limited reading abilities” made him unable to understand the election form and that the ADOC had failed to provide him with a reasonable accommodation as required by the ADA.[13] A speech pathologist found that Mr. Reeves’s “language competency was that of someone between the ages of 4 and 10,” that he could read at a fourth grade level but only comprehend at a first grade level, and that the election form required an eleventh grade reading level to understand.[14] In short, without assistance, the form was incomprehensible to Mr. Reeves.

Both the Middle District of Alabama and the Eleventh Circuit Court of Appeals found in favor of a preliminary injunction against Mr. Reeves’s execution based on his ADA claim. The District Court did so based on “a written record of more than 2,000 pages [and] more than seven hours of testimony and oral argument, and detailed its findings in a 37-page decision,” while the Eleventh Circuit panel unanimously affirmed the District Court “after full briefing and argument, in a 29-page opinion.”[15] Nevertheless, in a 5-4 decision lacking any explanation by the majority, the Supreme Court vacated the injunction and allowed Alabama to execute Mr. Reeves by lethal injection.[16] Mr. Reeves’s execution proceeded the same night as the Supreme Court’s decision.[17]

II. THE DIRE CONSEQUENCES OF POORLY TARGETED LEGAL DRAFTING

Many actors contributed to denying Mr. Reeves his chosen method of execution, including the Warden of Holman and her subordinates, the ADOC, and the Justices who voted to vacate Mr. Reeves’s preliminary injunction. The most puzzling of these actors, however, is a rather counterintuitive party: the Federal Defenders, the very same organization that represented Mr. Reeves before the Supreme Court.[18] How did an organization whose “mission . . . is to provide high quality, client-centered representation to indigent defendants”[19] end up in such a position? Ultimately, it was due to the Federal Defenders’ own poorly targeted legal drafting. Their practically unintelligible form led to the unfortunate circumstances of Mr. Reeves’s execution.

This begs the critical question of why the Federal Defenders drafted their election form in legalese—that “peculiar language of lawyers”[20]—to such an extent that “an inmate needed an 11th-grade reading level to understand it.”[21] Indeed, the Federal Defenders’ form would have been incomprehensible not only to Mr. Reeves or his fellow ADOC inmates, but to most Americans. A 2020 report found that 54% of Americans lack “literacy proficiency,”[22] meaning most Americans read below a sixth grade reading level.[23] The same report found that Alabama’s literacy is among the worst nationally, with 61% of Alabamans falling below literacy proficiency.[24] In other words, fewer than two out of every five Alabamans could have understood the Federal Defenders’ form without assistance. This shows that in drafting the form, the Federal Defenders lost sight of their target audience—with dire consequences for Mr. Reeves in particular. For its part, the ADOC further compounded this problem by adopting the form as their own—despite having “full knowledge that [it] was drafted for use during a detailed legal consultation between the Federal Defenders and their clients”[25]—and providing it en masse to over one hundred inmates with no further explanation than an announcement at the time of distribution, which was easily missed by inmates (including Mr. Reeves) who were sleeping or absent.[26]

Thus, while the ADOC bears much of the blame for its inappropriate use of the form without proper explanation,[27] the entire issue could ultimately have been nipped in the bud had the Federal Defenders kept their target audience in mind when drafting and avoided using legalese in the form. For instance, they could have used more common synonyms for technical words such as “pursuant,” “elect,” and “waive,” as well as avoiding parenthetically embedding the phrase “current or future” in the center of another clause.[28] Had the Federal Defenders taken a few simple steps such as these, the form might have been clearer, Mr. Reeves’s ADA lawsuit may not have been necessary, and he may not have faced execution by “the lethal injection method ‘he so greatly fear[ed].’”[29]

* * *

This post is not intended to single out the Federal Defenders, whose mission is noble and whose zealous representation of Mr. Reeves was commendable. Rather, this post highlights Mr. Reeves’s case to illustrate the sometimes deadly importance of drafting legal documents to one’s target audience. While legalese may suffice for a contract or a brief—whose target audience is primarily other attorneys—the lay public requires a different approach. Lives may very well depend on it.

 

[1] Legalese, Black’s Law Dictionary (11th ed. 2019).

[2] Lawyer Mug, Zazzle, https://www.zazzle.com/lawyer_mug-168642843638562435 [https://perma.cc/KH2T-97LZ] (last visited Feb. 1, 2023).

[3] Laurel Currie Oats & Anne Enquist, Just Writing: Grammar, Punctuation, and Style for the Legal Writer 127 (2009).

[4] Eric Martínez, Francis Mollica & Edward Gibson, Poor Writing, Not Specialized Concepts, Drives Processing Difficulty in Legal Language, 224 Cognition, art. no. 105070 (2022).

[5] Oats & Enquist, supra note 3, at 128.

[6] Jay Reeves, Man Executed for 1996 Killing After Supreme Court Clears Way, Associated Press (Jan. 27, 2022), https://apnews.com/article/us-supreme-court-health-alabama-executions-b9b6c18d2d0f1833329d09091998b14a [https://perma.cc/3N4Y-94NT].

[7] Hamm v. Reeves, 142 S. Ct. 743, 743 (2022) (Kagan, J., dissenting).

[8] Reeves v. Comm’r, Ala. Dep’t of Corr., 23 F.4th 1308, 1313 (11th Cir. 2022).

[9] Federal defender organizations are authorized by the Criminal Justice Act to fulfill the Sixth Amendment’s guarantee of counsel in serious criminal proceedings by representing indigent defendants in federal court. They are essentially defense “counterparts to federal prosecutors in U.S. Attorneys Offices.” Defender Services, U.S. Cts., https://www.uscourts.gov/services-forms/defender-services [https://perma.cc/Y452-6V6K] (last visited February 15, 2023). In June 2018, “Mr. Reeves was not yet a Federal Defenders client,” but the organization did represent him in his subsequent ADA case. Amended Complaint at 4, Reeves v. Dunn, 580 F. Supp. 3d 1060 (M.D. Ala. 2022) (No. 2:20-cv-00027-RAH), ECF No. 21; see, e.g., id. at 14 (showing Mr. Reeves’s amended ADA complaint was filed by three Assistant Federal Defenders); see also infra note 18 and accompanying text.

[10] Reeves v. Comm’r, 23 F.4th at 1314; Amended Complaint, supra note 9, at 3–4.

[11] Reeves v. Dunn, 580 F. Supp. 3d at 1065–66.

[12] Reeves v. Comm’r, 23 F.4th at 1313–14.

[13] Id. at 1314. Mr. Reeves’s IQ scores lay between the upper 60s and low 70s. Id. In Atkins v. Virginia, the Supreme Court held that executing a person with an intellectual disability is a violation of the Eighth Amendment. Reeves v. Dunn, 580 F. Supp. 3d at 1064 (citing Atkins, 536 U.S. 304 (2002)). Consequently, in October 2002, Mr. Reeves filed a petition for collateral relief raising an Atkins claim; however, the Alabama courts found that Mr. Reeves’s cognition, while below average, was not so low as to meet the requirements of Atkins. Both the Alabama Supreme Court and the United States Supreme Court denied Mr. Reeves’s petitions for certiorari. Id. at 1064–65.

[14] Reeves v. Comm’r, 23 F.4th at 1315.

[15] Hamm v. Reeves, 142 S. Ct. 743, 743–44 (2022) (Kagan, J., dissenting). It is worth noting, as the Eleventh Circuit’s opinion “emphasized[,] that the relief granted to Reeves would still allow Alabama to execute him—just by the method he would have chosen if he could have understood the ADOC’s election form.” Id. at 744.

[16] Id. at 743. Justice Amy Coney Barrett voted against vacating the injunction, while Justice Stephen Breyer and Justice Sonia Sotomayor joined Justice Elena Kagan in her written dissent. Id.

[17] Reeves, supra note 6.

[18] See Opposition to Emergency Application to Vacate Preliminary Injunction, Hamm, 142 S. Ct. 743 (No. 21A372) (noting, on the brief’s cover page, Mr. Reeves’s representation by the Federal Defenders).

[19] Home, Fed. Defs. for the Middle Dist. of Ala., https://www.almfd.org/index.html [https://perma.cc/RWJ2-ND7K] (last visited February 15, 2023).

[20] Black’s Law Dictionary, supra note 1.

[21] Hamm, 142 S. Ct. at 743 (Kagan, J., dissenting).

[22] Jonathan Rothwell, Barbara Bush Found. for Fam. Literacy, Gallup, Assessing the Economic Gains of Eradicating Illiteracy Nationally and Regionally in the United States 3 (2020), https://www.barbarabush.org/wp-content/uploads/2020/09/BBFoundation_GainsFromEradicatingIlliteracy_9_8.pdf [https://perma.cc/EN64-YQ5Y].

[23] Emily Schmidt, Reading the Numbers: 130 Million American Adults Have Low Literacy Skills, But Funding Differs Drastically by State, APM Res. Lab (Mar. 16, 2022), https://www.apmresearchlab.org/10x-adult-literacy [https://perma.cc/7YCG-RQZW].

[24] Rothwell, supra note 22, at 4–5.

[25] Amended Complaint, supra note 9, at 4.

[26] Reeves v. Dunn, 580 F. Supp. 3d 1060, 1074 (M.D. Ala. 2022).

[27] Not to mention the Justices who voted for Mr. Reeves’s lethal injection to proceed without so much as a written opinion and who, in this author’s opinion, bear both the proximate and heaviest moral burden.

[28] See supra note 11 and accompanying text; Martínez et al., supra note 4, at 2–3. Center-embedded structures in particular have been shown to “inhibit[] recall to a greater degree than other features” of legalese “due to the working memory constraints they impose on readers.” Id. at 6.

[29] Hamm v. Reeves, 142 S. Ct. 743, 743 (2022) (Kagan, J., dissenting).