Dissenter Excoriates SCOTUS for Denying Certiorari in Challenge to Constitutionality of Nitrogen Hypoxia Execution
On October 23, 2025, the Supreme Court of the United States (SCOTUS) denied certiorari in a federal civil rights action challenging Alabama’s use of nitrogen hypoxia for executions. Justice Sonia Sotomayor wrote a vivid and strongly worded dissent joined by Justices Elena Kagan and Ketanji Brown Jackson.
In 1993, Anthony Boyd and three other Alabama men kidnapped Quintay Cox, doused him in gasoline, and set him afire because he failed to pay them for $200 worth of cocaine he had previously received. In 1995, he was convicted of capital murder and sentenced to death. At that time, the sole method of execution in Alabama was electrocution. In 2002 and 2018, respectively, the legislature added lethal injection and nitrogen hypoxia as methods of execution. Currently, the default is lethal injection but prisoners are permitted to choose one of the other methods.
Asphyxiation by inhaling nitrogen is a relatively new form of execution that was touted by its proponents as a humane alternative to lethal injection, which had become controversial due to multiple “botched” executions during which prisoners gasped for air for tens of minutes or the execution team sliced open prisoners’ arms in a quest to find an intact vein (which is difficult to do in the arms of intravenous drug users). The proponents claimed that a person would lose consciousness within seconds of the nitrogen gas starting to flow and would simply slip peacefully into death. Reality has shown that this depiction of a nitrogen hypoxia execution is a fantasy.
When Boyd chose nitrogen hypoxia in 2018, there was little information available on how such nitrogen executions actually went. Alabama first used the method to execute Kenneth Eugene Smith in January 2024. After the mask was placed over his face and the nitrogen gas started flowing, “Smith made ‘violent movements’ immediately as he ‘gasped for … air.’ His ‘feet and head left the gurney [and] his arms appeared to strain against his restraints.’ Smith convulsed for about two to four minutes, shaking the gurney several times. His wife testified that it was like ‘watching someone drown without water.’”
Since 2018, Alabama and Louisiana have used nitrogen hypoxia in a total of seven executions. One spiritual advisor who was present for five of them said they “didn’t see somebody go unconscious in 30 seconds. What we saw was minutes of somebody struggling for his life [while] heaving back and forth. We saw spit. We saw all sorts of stuff develop from his mask.”
In her dissent, Sotomayor vividly describes the last minutes in the life of a person being executed by nitrogen hypoxia, before going on to explain why she believes that this form of execution violates the constitutional prohibition against cruel and unusual punishment. The majority and the lower courts disagreed with Sotomayor.
The district court speculated that Boyd would feel the same anxiety that would come after the nitrogen valve is opened but would merely feel it before the start of the execution process should Alabama use a different method to execute him. In his filings, Boyd requested what Sotomayor referred to as “the barest form of mercy: to die by firing squad,” the method he suggested as causing less suffering.
However, it may well be that there is no humane way to perform an execution. That was the conclusion a former federal magistrate judge came to after being appointed in 2022 by Arizona Governor Katie Hobbs (D) to examine that state’s lethal injection execution protocol and find a humane alternative, if necessary. In response, Hobbs dismissed the former federal magistrate.
Boyd was executed on October 23, 2025, after SCOTUS refused to stay the execution. Witnesses reported that the execution lasted almost 40 minutes with Boyd gasping over 225 times and shuddering more than 15 minutes. See: Boyd v. Hamm, 2025 U.S. LEXIS 4016.
Additional sources: ProPublica, SCOTUSblog
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Related legal case
Boyd v. Hamm
| Year | 2025 |
|---|---|
| Cite | 2025 U.S. LEXIS 4016 |
| Level | Supreme Court |