What happened
The U.S. Supreme Court denied Anthony Boyd's emergency bid to block Alabama from executing him by nitrogen hypoxia and declined to take up his case, drawing a dissent from Justice Sonia Sotomayor joined by Justices Elena Kagan and Ketanji Brown Jackson.
Boyd had challenged Alabama's use of nitrogen hypoxia under the Eighth Amendment and asked to be executed by firing squad instead. The court's order denied both his application for a stay of execution and his petition for certiorari, leaving in place lower-court rulings against emergency relief.
In dissent, Justice Sotomayor said Boyd had made the showing required by Bucklew v. Precythe because nitrogen hypoxia, as reflected in the record before the lower courts, risks minutes of conscious suffocation while a firing squad would render a person unconscious within seconds. She wrote that courts should enforce the Eighth Amendment when an execution method "superadds psychological terror" as part of its successful completion.
The dissent said the district court denied Boyd's request for a preliminary injunction barring nitrogen hypoxia, and the Eleventh Circuit denied a stay on the ground that the district court did not abuse its discretion in finding Boyd's Eighth Amendment claim lacked merit. Sotomayor called that error.
Under Bucklew, the dissent said, a prisoner challenging a method of execution must identify a feasible and readily implemented alternative that would significantly reduce a substantial risk of severe pain and that the state has refused to adopt without a legitimate penological reason. Boyd identified the firing squad as the comparator.
Sotomayor's dissent emphasized findings and assumptions that loss of consciousness during nitrogen hypoxia typically takes two minutes, had extended to four minutes in a prior execution and, even if it lasted seven minutes, would not have changed the district court's analysis. By contrast, the district court found that a firing squad would render someone unconscious in three to six seconds.
The dissent argued that the lower courts wrongly treated Boyd's claimed suffering as no different from the anticipatory distress inherent in any execution. Sotomayor said the relevant Eighth Amendment problem was the additional terror after the execution begins, when a person allegedly remains conscious while experiencing the urge to breathe.
Because Boyd had shown he was likely to succeed on his Eighth Amendment claim, Sotomayor said, the Supreme Court should have granted both a stay of execution and certiorari. The supplied opinion contains no separate majority explanation beyond the denial of relief.