WASHINGTON (LN) — Four Supreme Court justices have now publicly broken with the court's repeated refusals to pause nitrogen hypoxia executions, with three liberal justices raising Eighth Amendment concerns and Justice Neil Gorsuch raising religious freedom issues — a division that could deepen if Alabama proceeds with a scheduled June 11 execution.
The dissents have accumulated across three cases since January 2024, when Alabama carried out the first nitrogen gas execution in U.S. history. In each instance, the court denied the condemned inmate's request for a stay. But the separate writings have grown sharper, and the factual record underlying them has grown more detailed.
Justice Sonia Sotomayor's nine-page dissent in the October 2025 case of Anthony Boyd — joined by Justices Elena Kagan and Ketanji Brown Jackson — offered the most detailed critique of the method to date. "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," Sotomayor wrote. "Your mind knows that the gas will kill you. But your body keeps telling you to breathe. That is what awaits Anthony Boyd tonight."
Boyd was executed anyway. A journalist who witnessed the execution, Lee Hedgepeth, reported that Boyd gasped for air more than 225 times before he was pronounced dead.
The pattern of dissents began in early 2024 when Alabama sought to execute Kenneth Eugene Smith — the first person to face nitrogen hypoxia — after a prior lethal injection attempt failed due to vein access problems. Sotomayor, writing with "deep sadness, but commitment to the Eighth Amendment's protection against cruel and unusual punishment," raised the possibility that Smith might choke on his own vomit rather than die of oxygen deprivation, calling the method "untested." Kagan, joined by Jackson, wrote separately that Alabama should have provided more information about its protocol allowed the execution to proceed.
The middle case, Hoffman v. Westcott, added a different dimension. Jessie Hoffman, a Buddhist inmate in Louisiana, argued that nitrogen gas execution would interfere with his practice of meditative breathing of death — a spiritual act he described as determinative of the quality of rebirth. Sotomayor, Kagan, and Jackson said they would have granted a stay without elaborating further. Gorsuch dissented separately, arguing the U.S. Court of Appeals for the Fifth Circuit should have given fuller consideration to Hoffman's claim under the Religious Land Use and Institutionalized Persons Act.
The Justice Department's recent report on capital punishment, released last month, cited two rulings from the U.S. Court of Appeals for the Eleventh Circuit and one from the Fifth Circuit holding that nitrogen hypoxia comports with the Eighth Amendment. The Fifth Circuit concluded that breathing pure nitrogen causes unconsciousness in less than a minute, with death following rapidly within ten to fifteen minutes, and that the method "does not produce physical pain." The report did not engage with the dissenting justices' concerns.
Eight nitrogen gas executions have now taken place — seven in Alabama and one in Louisiana — since the method was first used in January 2024. Nitrogen hypoxia is an approved execution method in five states: Alabama, Arkansas, Louisiana, Mississippi, and Oklahoma.
The arithmetic of the court's emergency docket complicates any path to merits review. Five votes are needed to grant a stay, and only four justices have dissented across all three nitrogen cases — and not the same four in any single case. A so-called courtesy fifth, where a justice provides a decisive vote to pause an execution to allow time for certiorari consideration, remains a theoretical possibility but has not been applied consistently.
Jeffrey Lee, sentenced to death for the murders of Jimmy Ellis and Elaine Thompson, is scheduled to be executed by nitrogen hypoxia in Alabama on June 11, with an active federal lawsuit challenging the method's humaneness already pending — giving the court its next opportunity to either intervene or again decline.