Supreme Court liberals decry ‘excruciating suffocation’ in nitrogen hypoxia executions

By John Fritze, CNN

(CNN) — The Supreme Court’s three liberal justices on Thursday laid out a remarkable critique of nitrogen hypoxia executions, asserting that the new form of capital punishment causes “psychological terror” and “excruciating suffocation” in the condemned and likely violates the Eighth Amendment’s prohibition on cruel and unusual punishment.

Justice Sonia Sotomayor, the court’s senior liberal, encouraged Americans to start a stopwatch on their phones and reflect as the seconds turn into minutes.

“Now imagine for that entire time, you are suffocating,” Sotomayor wrote in her dissent, which was joined by Justices Elena Kagan and Ketanji Brown Jackson. “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,” she continued. “But your body keeps telling you to breathe.”

Sotomayor’s striking dissent came in the case of Anthony Boyd, who was convicted and sentenced to death in 1995 for the brutal killing of Gregory Huguley in Alabama. Huguley was duct-taped to a bench, doused with gasoline, and burned alive over a $200 drug debt, according to court records.

The Supreme Court declined to pause Boyd’s execution, and, as is almost always the case in emergency death penalty cases, the majority did not explain its decision. Capital cases almost always come up to the Supreme Court days – and sometimes hours – before the scheduled execution.

Boyd was executed later Thursday, according to Alabama Attorney General Steve Marshall.

Five states have authorized the use of nitrogen hypoxia as a form of execution, but only Alabama and Louisiana have used the method so far. Early last year, the Supreme Court allowed Alabama to execute an inmate with the procedure for the first time. The two states have used nitrogen hypoxia to execute seven people.

The new method was partly a response to many pharmaceutical companies declining to allow their drugs to be used in lethal injections.

But use of nitrogen gas in executions, Sotomayor wrote, has demonstrated that the method is “not at all what it was promised to be.” It takes at least two minutes and possibly as many as seven to lose consciousness, Sotomayor wrote – “that is, up to seven full minutes of conscious, excruciating suffocation.”

Boyd had asked to be killed by firing squad instead.

“The Constitution would grant him that grace,” Sotomayor wrote. “My colleagues do not. This court thus turns its back on Boyd and on the Eighth Amendment’s guarantee against cruel and unusual punishment.”

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