Liberal justices slam Supreme Court approval of nitrogen gas execution in Alabama

WASHINGTON (CN) — Justice Sonia Sotomayor lambasted her conservative colleagues for allowing Alabama to move forward with a nitrogen hypoxia execution on Thursday, stating that the experimental method induces psychological terror and violates the mandate against cruel and unusual punishment.

“Take out your phone, go to the clock app and find the stopwatch,” Sotomayor, a Barack Obama appointee, wrote. “Click start.”

Joined by Justices Elena Kagan and Ketanji Brown Jackson, Sotomayor instructed readers to watch the seconds count up on the stopwatch until the four-minute mark.

“Now imagine for that entire time, you are suffocating,” Sotomayor wrote. “You want to breathe; you have to breathe. But you are strapped to a gurney with a mask on your face pumping your lungs with nitrogen gas. Your mind knows that the gas will kill you. But your body keeps telling you to breathe.”

The majority of execution stays at the Supreme Court do not elicit public dissents, let alone detailed descriptions of the planned execution. But Sotomayor offered a graphic picture of Alabama’s execution of Anthony Boyd — which the Supreme Court refused to block — to chronicle what she said was a form of cruel and unusual punishment.

“Boyd asks for the barest form of mercy: to die by firing squad, which would kill him in seconds, rather than by a torturous suffocation lasting up to four minutes,” Sotomayor wrote. “The Constitution would grant him that grace. My colleagues do not.”

Boyd was sentenced to death for the 1995 murder of Gregory Huguley, who was burned alive over a $200 debt. Alabama executed Boyd Thursday by nitrogen hypoxia — an execution method that pumps nitrogen into a mask, depriving the inmate of oxygen and suffocating them to death.

Alabama was the first state to use the controversial method in 2024 to execute Kenneth Eugene Smith. Similarly, the Supreme Court refused to stop Smith’s execution from moving forward against the dissent of the three liberal justices.

Then Sotomayor described nitrogen hypoxia executions as experiments on human life. She said now the court knows what will happen.

“For two to four minutes, Boyd will remain conscious while the state of Alabama kills him in this way,” Sotomayor wrote. “When the gas starts flowing, he will immediately convulse. He will gasp for air. And he will thrash violently against the restraints holding him in place as he experiences this intense psychological torment until he finally loses consciousness. Just short of 20 minutes later, Boyd will be declared dead.”

Alabama and Louisiana are the only states that use nitrogen hypoxia, executing a total of seven people with the method. Alabama started using the method after a slew of botched lethal injection executions. When Smith was executed, witnesses said he convulsed for around four minutes like “watching someone drown without water.”

According to Alabama, Smith’s convulsions were due to him holding his breath and fighting the execution process, but Sotomayor said subsequent nitrogen hypoxia executions had similar results.

“When the execution began, [Aiden] Miller’s ‘whole body started to shake very intensely,’ ‘violent convulsions,’” Sotomayor wrote. “He ‘gasped, shook and struggled against his restraints,’ with his eyes open the entire time.”

Sotomayor said Carey Dale Grayson, Demetrius Frazier, Gregory Hunt and Geoffrey West — all executed by nitrogen hypoxia — had similar experiences.

Boyd elected an alternative execution method, death by firing squad, but Alabama rejected his request. The lower courts refused to force the state’s hand, finding that distress was an unavoidable consequence of capital punishment.

“That analysis is blind to the reality of what will happen to Boyd in this execution chamber and the additional and unnecessary psychological terror he will experience,” Sotomayor wrote.

The extended suffering Boyd will experience after the execution begins, Sotomayor added, creates a “superadded psychological torment” that differs from any constitutional method of execution.

“There is a significant constitutional difference between three to six seconds of physical pain and terror and two to seven minutes of conscious suffocation with its associated psychological pain and terror,” Sotomayor wrote.

Sotomayor said that courts must weigh the associated pain of different execution methods, even though the process could be “deeply troubling.”

“Allowing the nitrogen hypoxia experiment to continue despite mounting and unbroken evidence that it violates the Constitution by inflicting unnecessary suffering fails to ‘protec[t] [the] dignity’ of ‘the nation we have been, the nation we are, and the nation we aspire to be,’” Sotomayor wrote.

The conservative majority did not explain its decision to deny Boyd’s execution stay request.

Alabama Attorney General Steve Marshall countered Boyd’s arguments by stating that the victim was not given the opportunity to delay his death.

“Alabama remains steadfast in its commitment to uphold the law and deliver justice for victims and their families,” Marshall said in a statement. “I am proud of my team’s tireless dedication to that mission, and I pray that Gregory’s loved ones may finally find peace in knowing justice has been served.”

Marshall cleared Boyd’s execution to begin at 5:55 p.m.— a little over an hour after the Supreme Court’s order was issued. Alabama said Boyd’s time of death was 6:33 p.m.

Boyd’s attorneys did not immediately respond to requests for comment on the ruling.

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