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Cite as: 607 U. S. ____ (2025) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 25A457 (25–5928)
_________________
ANTHONY BOYD v. JOHN Q. HAMM, COMMIS-
SIONER, ALABAMA DEPARTMENT OF
CORRECTIONS, ET AL.
ON APPLICATION FOR STAY AND ON PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
[October 23, 2025]
The application for stay of execution of sentence of death
presented to JUSTICE THOMAS and by him referred to the
Court is denied. The petition for a writ of certiorari is de-
nied.
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and
JUSTICE JACKSON join, dissenting from the denial of appli-
cation for stay and denial of certiorari.
Take out your phone, go to the clock app, and find the
stopwatch. Click start. Now watch the seconds as they
climb. Three seconds come and go in a blink. At the thirty-
second mark, your mind starts to wander. One minute
passes, and you begin to think that this is taking a long
time. Two . . . three . . . . The clock ticks on. Then, finally,
you make it to four minutes. Hit stop.
Now imagine for that entire time, you are suffocating.
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.
That is what awaits Anthony Boyd tonight. For two to
four minutes, Boyd will remain conscious while the State of
Alabama kills him in this way. When the gas starts flow-
ing, he will immediately convulse. He will gasp for air. And
2 BOYD v. HAMM
SOTOMAYOR, J., dissenting
he will thrash violently against the restraints holding him
in place as he experiences this intense psychological tor-
ment until he finally loses consciousness. Just short of
twenty minutes later, Boyd will be declared dead.
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. The Con-
stitution would grant him that grace. My colleagues do not.
This Court thus turns its back on Boyd and on the Eighth
Amendment’s guarantee against cruel and unusual punish-
ment. Because the Court should have instead granted a
stay of execution and Boyd’s petition for certiorari, I re-
spectfully dissent.
I
Nitrogen hypoxia is a new method of execution. To carry
out an execution using this method, prison officials force a
condemned person to inhale pure nitrogen gas, which dis-
places the oxygen in that person’s lungs. Robbed of air in
this way, the body’s instinctual urge to breathe kicks in. At
the same time, the mind understands that breathing will
result in death. The process takes around 20 minutes from
start to completion. See App. 36a–42a (recounting prior ni-
trogen hypoxia executions taking between 16 and 23
minutes).
Five States have authorized nitrogen hypoxia as a form
of execution, though only Alabama and Louisiana have
used it to carry out executions so far. Before its implemen-
tation, the method was touted by Alabama and other States
as a more “humane” alternative to lethal injection because
it was supposedly “painless” and would result in uncon-
sciousness within “seconds.” Response in Opposition to Ap-
plication for Stay in Smith v. Hamm, O. T. 2023, No. 23–
6562, etc., pp. 3, 21; Dunn v. Price, 587 U. S. 929, 930–931
(2019) (Breyer, J., dissenting from grant of application to
vacate stay). Yet even before Alabama undertook the first
Cite as: 607 U. S. ____ (2025) 3
SOTOMAYOR, J., dissenting
execution using nitrogen hypoxia in early 2024, serious con-
cerns were raised about the veracity of these claims. See
Smith v. Hamm, 601 U. S. ___, ___–___, ___ (2024)
(SOTOMAYOR, J., dissenting from denial of application for
stay and denial of certiorari) (slip op., at 1–2, 4). Moreover,
the method’s “details [we]re hazy” because Alabama re-
leased only a “heavily redacted protocol” describing the pro-
cess. Id., at ___ (slip op., at 1).
Today, we have an actual record of nitrogen hypoxia’s
use. Together, Alabama and Louisiana have executed
seven people using the method, see App. to Pet. for Cert.
25a (App.); Hoffman v. Westcott,
604 U. S. ___ (2025), and
the firsthand accounts from those executions reveal that ni-
trogen hypoxia is not at all what it was promised to be.
Start with Kenneth Eugene Smith, the first person to be
executed using nitrogen hypoxia in our country’s history.
When the nitrogen gas started flowing, Smith made “ ‘vio-
lent movements’ ” immediately as he “ ‘gasp[ed] for . . . air.’ ”
App. 36a. His “feet and head left the gurney [and] his arms
appeared to strain against his restraints.” Ibid. Smith con-
vulsed for about two to four minutes, shaking the gurney
several times. His wife testified that it was like “ ‘watching
someone drown without water.’ ” Petitioner’s Post-Hearing
Brief in No. 25–cv–00529 (ND Ala., Sept. 11, 2025), ECF
Doc. 87, p. 3. Smith’s spiritual advisor, who has witnessed
at least five lethal-injection executions, remarked after-
ward that “ ‘[w]e didn’t see somebody go unconscious in 30
seconds. What we saw was minutes of somebody struggling
for his life. We saw minutes of someone heaving back and
forth. We saw spit. We saw all sorts of stuff develop from
his mask.’ ”1 He emphasized that “[i]t was the most horrible
——————
1 R. Chapoco, Kenneth Eugene Smith Executed by Nitrogen Gas for
1988 Murder-for-Hire Scheme, Alabama Reflector, Jan. 25, 2024,
https://alabamareflector.com/2024/01/25/kenneth-eugene-smith-executed-
by-nitrogen-gas-for-1988-murder-for-hire-scheme/.
4 BOYD v. HAMM
SOTOMAYOR, J., dissenting
thing” he had “ever seen.”2 Smith was pronounced dead 18
minutes after the execution started.
The State largely blamed Smith for staying conscious. It
insisted that his convulsing was primarily because he held
his breath and fought the execution process. See App. 37a,
and n. 24; Miller v. Marshall, No. 2:24–cv–197 (MD Ala.,
July 15, 2024), ECF Doc. 70, pp. 1–2, 14–21. Subsequent
executions, however, show that Smith was certainly not the
problem.
Alan Miller was executed next. When the execution be-
gan, Miller’s “ ‘whole body started to shake very intensely,’ ”
App. 38a, with “ ‘violent convulsions,’ ” ECF Doc. 87, at 6.
He “ ‘gasped, shook[,] and struggled against his restraints,’ ”
App. 38a, with his eyes open the entire time. ECF Doc. 87,
p. 6. Miller was pronounced dead after sixteen minutes.
Then came Carey Dale Grayson: For four minutes, he shook
“ ‘his head vigorously,’ ” “ ‘struggled[ ] while clearly still
breathing,’ ” and raised both of his legs far off the gurney as
he pushed against the restraints. App. 39a–40a. Grayson
was pronounced dead after 16 minutes. This pattern has
held steady during the State’s subsequent executions of De-
metrius Frazier, Gregory Hunt, and Geoffrey West, as wit-
nesses have reported similar observations each time: ap-
parent consciousness for minutes, not seconds; and violent
convulsing, eyes bulging, consistent thrashing against the
restraints, and clear gasping for the air that will not come.
Id., at 34a, 41a–42a.3 Yet, the State has continued to de-
fend the executions as constitutionally permissible despite
a readily available alternative.
——————
2 J. Beck, CNN 5 Things, Jan. 26, 2024, https://www.cnn.com/
audio/podcasts/5-things/episodes/146b819c-8f0111eea87667c76723c206.
3 See K. Chandler, Alabama Executes Man With Nitrogen Gas for 1997
Shooting Death of Store Clerk, Associated Press, Sept. 25, 2025,
https://apnews.com/article/alabama-execution-nitrogen-
abbee4a788ad61f5b8d7cfe0d7afe992.
Cite as: 607 U. S. ____ (2025) 5
SOTOMAYOR, J., dissenting
II
Boyd challenged Alabama’s use of nitrogen hypoxia un-
der the Eighth Amendment and asked that the State exe-
cute him by firing squad instead. The District Court denied
Boyd’s request for a preliminary injunction barring his ex-
ecution by nitrogen hypoxia. The Eleventh Circuit denied
a stay on the sole ground that the District Court did not
abuse its discretion in finding that Boyd’s Eighth Amend-
ment claim lacked merit. That was error.
Under Bucklew v. Precythe, 587 U. S. 119 (2019), whether
a method of execution violates the Eighth Amendment
turns, in main part, on whether it imposes a “super-
add[ition] of terror, pain, or disgrace.”
Id., at 119, 133
(quoting Baze v. Rees,
553 U. S. 35, 48 (2008) (plurality
opinion); internal quotation marks omitted). To establish
that the “State’s chosen method of execution cruelly super-
adds pain to the death sentence,” Bucklew instructs that “a
prisoner must show a feasible and readily implemented al-
ternative method of execution that would significantly re-
duce a substantial risk of severe pain and that the State has
refused to adopt without a legitimate penological reason.”
587 U. S., at 134. Bucklew did not distinguish between
mental and physical anguish in setting forth this standard.
For good reason: As recognized for centuries, a form of pun-
ishment can be “cruel” if “ ‘[d]isposed to give pain to others,
in body or mind.’ ”
Id., at 130 (quoting 1 N. Webster, An
American Dictionary of the English Language (1828); em-
phasis added); see Watts v. Indiana,
338 U. S. 49, 52 (1949)
(opinion of Frankfurter, J.) (“There is torture of mind as
well as body; the will is as much affected by fear as by force.
And there comes a point where this Court should not be ig-
norant as judges of what we know as men”). Here, Boyd
identified the firing squad as an alternative method by
which to evaluate the comparative pain imposed by nitro-
gen hypoxia.
6 BOYD v. HAMM
SOTOMAYOR, J., dissenting
Before the District Court, the parties presented evidence
at a two-day hearing. The District Court then made the
following determinations critical to its analysis. First, the
District Court found, and the parties agreed, that “agonal
breathing,” which occurs when an individual is close to
death and is often characterized by “gasping, muscle jerks,
and grunting,” is not itself sufficient evidence of pain be-
cause it can be involuntary and occur when a person is un-
conscious. App. 43a–44a. But the experts on both sides also
agreed that severe psychological pain endures after the ni-
trogen gas is turned on and lasts until a loss of conscious-
ness occurs. Id., at 51a–52a. As the District Court saw it,
the “key question” was therefore “how long it will take” for
a person to lose consciousness during the execution, and the
court accepted for the sake of its analysis that this period
typically lasts for two minutes, but has extended to four
minutes in a prior execution.
Id., at 52a. The District Court
further clarified that even if this period lasted for seven
minutes, its conclusion on Boyd’s Eighth Amendment claim
would not change.
Id., at 53a, n. 34.
Second, the District Court found that to minimize the du-
ration of conscious suffering, the individual must cooperate
in his execution.
Id., at 55a–56a. Holding one’s breath or
taking short breaths, often the products of an involuntary
reaction to oxygen depletion, prolongs consciousness.
Ibid.
Third, the District Court found that a firing squad would
render someone unconscious in three to six seconds.
Id., at
64a. Still, the court noted, this period would involve physi-
cal pain, whereas nitrogen hypoxia would likely inflict psy-
chological pain alone.
Ibid. The Eleventh Circuit, for its
part, did not rely on this distinction between physical and
psychological pain, instead accepting for the sake of argu-
ment that nitrogen hypoxia does inflict physical pain too.
Id., at 11a.
On these findings and assumptions, Boyd more than
made his case, under Bucklew, that nitrogen hypoxia likely
Cite as: 607 U. S. ____ (2025) 7
SOTOMAYOR, J., dissenting
poses a substantial risk of conscious terror and psychologi-
cal pain and that the firing squad is a sufficient alternative.
The District Court, however, justified its contrary conclu-
sion by drawing a false equivalence. In its view, prisoners
facing death by nitrogen hypoxia, like all prisoners facing
execution, experience distress knowing that death is near.
See App. 62a–64a. As a result, distress is an “unavoidable
consequenc[e] of capital punishment under any method of
execution.” Id., at 62a. That the distress continues when
the gas is turned on is therefore unremarkable.
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. Boyd
will, of course, experience the same distress that all con-
demned men suffer in anticipation of their execution by the
State. The claim here, however, is that, on top of that ordi-
nary, anticipatory distress, nitrogen hypoxia will pro-
foundly add to Boyd’s suffering after the execution begins
and while it is being carried out to completion. As the Dis-
trict Court assumed, it takes at least two, and could take
up to seven, full minutes for someone to lose conscious-
ness—that is, up to seven full minutes of conscious, excru-
ciating suffocation. Id., at 52a–55a. As the State’s expert
admitted, “a person consciously experiencing the ‘primal
urge to breathe’ ” during those two to seven minutes “while
knowing that breathing will cause death amounts to severe
emotional suffering.” Id., at 51a. This superadded psycho-
logical torment is both unique to nitrogen hypoxia and goes
well beyond what is inherent in any constitutional method
of execution. Cf. Baze, 553 U. S., at 53 (plurality opinion)
(noting that a substantial risk of suffocation violates the
Eighth Amendment).
A similar error led the District Court to reject the firing
squad as an adequate alternative to nitrogen hypoxia—
even while determining that it was “feasible” and could be
“readily implemented.” App. 66a. According to the District
8 BOYD v. HAMM
SOTOMAYOR, J., dissenting
Court, death by firing squad would not “significantly reduce
a substantial risk of severe pain” posed by nitrogen hypoxia
because the same anticipatory psychological pain would oc-
cur before the execution by firing squad, while the firing
squad would add a risk of physical pain after the shots are
fired. Ibid.; see id., at 63a–64a. Again, however, the Dis-
trict Court ignored that, under its own assumptions, nitro-
gen hypoxia would superadd up to seven minutes of psycho-
logical pain beyond the ordinary anticipatory distress of an
execution. Once the execution starts, a firing squad would
render someone unconscious in three to six seconds; nitro-
gen hypoxia, on the other hand, lasts for minutes. See
id.,
at 55a, 64a. 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 asso-
ciated psychological pain and terror. In gross numerical
terms, nitrogen hypoxia risks extending the period of terror
up to 140-fold.
Although it is deeply troubling to weigh the associated
pain posed by the two different methods against each other,
this “comparative exercise” is demanded by the Court’s re-
cent precedents. See Bucklew,
587 U. S., at 136. Perhaps
this unease reflects problems with its doctrinal foundation.
See Glossip v. Gross,
576 U. S. 863, 970–975 (2015)
(SOTOMAYOR, J., dissenting). So long as the requirement
persists, however, courts must engage in this macabre
weighing. Here, the District Court and the Eleventh Cir-
cuit failed to recognize the significant differences between
the two methods of execution despite the factual record be-
fore them. Because Boyd demonstrated that he was likely
to succeed on his Eighth Amendment claim, this Court
should have granted a stay of execution and his petition for
certiorari.
Cite as: 607 U. S. ____ (2025) 9
SOTOMAYOR, J., dissenting
* * *
The Eighth Amendment “does not guarantee a prisoner a
painless death.” Bucklew, 587 U. S., at 132. But when a
State introduces an experimental method of execution that
superadds psychological terror as a necessary feature of its
successful completion, courts should enforce the Eighth
Amendment’s mandate against cruel and unusual punish-
ment. Allowing the nitrogen hypoxia experiment to con-
tinue despite mounting and unbroken evidence that it vio-
lates 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.’ ”
Smith, 601 U. S., at ___ (opinion of SOTOMAYOR, J.) (slip op.,
at 5) (quoting Hall v. Florida,
572 U. S. 701, 708 (2014)).
Seven people have already been subjected to this cruel form
of execution. The Court should not allow Boyd to become
the eighth.