“Take out your phone” is not a typical start to a Supreme Court opinion. But Justice Sonia Sotomayor’s dissent Thursday from the court’s latest refusal to halt an execution only gets more unconventional — and more dire — from there.
That’s because she’s simulating a nitrogen gassing at the hands of Alabama executioners.
Joined by fellow Democratic-appointed Justices Elena Kagan and Ketanji Brown Jackson, Sotomayor proceeds to tell the reader to find their phone’s stopwatch, click start, wait four minutes, hit stop and then “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, she wrote, “is what awaits Anthony Boyd.” He was executed later Thursday for what state officials described to the justices as “his participation in the brutal murder of Gregory Huguley, who was duct-taped to a bench, doused with gasoline, and burned alive over a $200 debt.”
Boyd said he was innocent. He argued in court that Alabama’s experimental execution method violated the Eighth Amendment’s ban on cruel and unusual punishment. Under Supreme Court precedent at the Roberts Court, that meant he had to identify an alternative method “that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason.”
Boyd asked for the firing squad. State officials and the lower courts rejected the request.
At the high court, the Republican-appointed majority declined to extend him what Sotomayor called “the barest form of mercy”: to die by that alternative firing squad method, which, she wrote, “would kill him in seconds, rather than by a torturous suffocation lasting up to 4 minutes.”
She said the Constitution “would grant him that grace” but “my colleagues do not.” The majority offered no explanation for declining to step in. Sotomayor’s striking opinion follows previous pointed dissents in death penalty appeals, including a recent one in which she said the majority “abandons its duty.” Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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