Liberal US Supreme Court justices decry nitrogen gas execution in spirited dissent

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By Luc Cohen

(Reuters) -As the state of Alabama prepared to execute a death row inmate on Thursday with nitrogen gas, the U.S. Supreme Court’s three liberal justices in a spirited dissent urged the public to watch the seconds on their smartphone clocks tick all the way to four minutes. 

“Imagine for that entire time, you are suffocating,” wrote the three judges, led by Sonia Sotomayor. “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.

“That is what awaits Anthony Boyd tonight,” Sotomayor wrote, in a dissent joined by Elena Kagan and Ketanji Brown Jackson, stating that the novel execution method amounts to cruel and unusual punishment in violation of the U.S. Constitution’s Eighth Amendment. 

BOYD SOUGHT FIRING SQUAD

The Supreme Court’s conservative majority had denied a petition by Boyd, who has spent three decades on death row over his role in a 1993 murder, to stop his execution by nitrogen asphyxiation and instead kill him by firing squad. 

Support for the death penalty in the U.S. is near a 50-year low around 53%, according to a 2024 Gallup poll.

Capital punishment is currently permissible in 27 of the 50 states, and last year four states – Alabama, Texas, Missouri and Oklahoma – carried out about three quarters of the country’s 25 executions, according to the Death Penalty Information Center. 

The Court’s six conservatives did not explain their reasoning for denying Boyd’s petition. 

In rejecting his challenge to nitrogen gas execution, U.S. District Judge Emily Marks wrote in an October 9 decision that psychological and emotional pain were unavoidable consequences of capital punishment no matter the method. 

“Every person condemned to die likely experiences feelings of angst, anxiety, stress, or panic,” Marks wrote.

BOYD WAS CONVICTED OF 1993 KILLING, MAINTAINED HIS INNOCENCE 

Boyd, 54, was pronounced dead at 6:33 p.m. (2333 GMT), according to the Alabama Department of Corrections.

He had been convicted of killing Gregory Huguley in 1993 over a $200 cocaine debt. Prosecutors said Boyd taped Huguley’s legs while others poured gasoline on him and set him on fire.

Boyd has maintained his innocence. 

According to local media, Boyd smiled and gave a thumbs up upon entering the execution chamber. “I didn’t kill anybody,” he reportedly said, when asked if he had any last words. 

Alabama Attorney General Steve Marshall said Boyd had not presented evidence that the jury wrongfully convicted him, and said Boyd “sought to delay justice through endless litigation.”

“Gregory Huguley was never afforded the chance to delay his own brutal and untimely death,” Marshall said in a statement. 

ALABAMA BOTCHED PRIOR EXECUTIONS 

Alabama carried out the first execution by nitrogen gas asphyxiation in January 2024, after the Supreme Court declined to stop the state from using the new method to kill convicted murderer Kenneth Smith.

State authorities had touted asphyxiation as a simpler alternative to lethal injections, for which prison systems had struggled to secure the necessary drugs. The state’s executioners had also repeatedly struggled to insert intravenous lines during previous botched executions, including a prior unsuccessful attempt to kill Smith.

Witnesses to Smith’s execution said he shook his head and writhed for two minutes, and could be seen breathing deeply for several minutes before his breathing slowed and became imperceptible.

Sotomayor wrote that many of the six people who have been executed by nitrogen gas since then in Alabama and Louisiana had similarly harrowing experiences. 

Sotomayor wrote that Marks’ analysis was “blind to the reality of what will happen to Boyd in this execution chamber.” 

“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,” Sotomayor wrote. 

“Boyd asks for the barest form of mercy: to die by firing squad,” Sotomayor wrote. “The Constitution would grant him that grace. My colleagues do not.”

(Reporting by Luc Cohen in New York; Editing by Noeleen Walder and Edmund Klamann)