Sonia Sotomayor’s Oct. 23 dissent exploded into an emotional plea against executing Anthony Boyd by nitrogen gas, using a stopwatch exercise and vivid language to argue the method causes unbearable psychological torment. The piece walks through the dissent, the gruesome facts of Boyd’s conviction, competing scientific claims about nitrogen anoxia, and the broader debate over whether concern about method is a backdoor to abolishing capital punishment. It highlights the court split and records that Boyd was ultimately executed in Alabama. The tone here is critical of Sotomayor’s theatrical approach and defends the court’s ability to permit a legally sanctioned method of execution while acknowledging the moral stakes.
“Take out your phone, go to the clock app, and find the stopwatch,” Supreme Court Justice Sonia Sotomayor opens her Oct. 23 dissent. Sotomayor was joined by justices Elena Kagan and Ketanji Brown Jackson. That opening set the stage for a heavily staged appeal to the reader’s empathy, framed as a timed exercise meant to make us feel the drag of each passing second.
“Click start. Now watch the seconds as they climb. Three seconds come and go in a blink. At the thirtysecond 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.” The words are meant to transform a legal opinion into performance art. It’s a dramatic tactic, and critics argue it substitutes feeling for legal analysis.
Sotomayor’s stopwatch exercise was used to argue against executing Boyd by nitrogen anoxia, which she described as a prolonged suffocation. Her colleagues on the court split with her, and the decision paved the way for Alabama to proceed. The disagreement exposes a deeper divide about what counts as cruel and unusual under the Eighth Amendment.
Boyd insisted on his innocence and said plainly, “I didn’t kill anybody. I didn’t participate in killing anybody.” The record, however, shows he was convicted for his role in a 1993 killing that prosecutors said involved a brutal, prolonged attack. The jury returned an advisory verdict recommending the death penalty after being presented with grim, corroborated testimony.
The court documents portray a horrific scene: Boyd allegedly taped Gregory Huguley’s feet while another taped his hands and mouth, and a third man doused the victim with gasoline and set him on fire. Boyd and his co-conspirators “watched ‘New York’ burn for 10 to 15 minutes until the flame went out. During the burning ‘New York’ rolled over a few feet. Then at this point in time he died as a result of the burning,” the documents state. Those facts are central to why many conservatives see this sentence as legally justified and morally defensible.
Sotomayor escalates the rhetoric with another passage meant to force discomfort on readers: “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.” The passage is designed to make the method feel intolerable in the imagination.
She then contrasts Boyd’s plea for a quicker death with the court’s decision: “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 Constitution 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 punishment,” Sotomayor writes. For many on the right, that is theatrical language meant to steer public opinion rather than settle a legal standard.
The scientific debate is messy and partisan. Some researchers argue nitrogen anoxia is inherently inhumane, while others reviewing the literature say, under current legal standards, nitrogen hypoxia is a feasible method of execution. Experts with clear advocacy positions can tilt the narrative, so courts must weigh evidence carefully rather than accept dramatic hypotheticals as determinative.
The discussion even touches public euthanasia devices. Philip Nitschke, who built a so-called suicide pod, told a reporter, “The person who wants to die presses the button and the capsule is filled with nitrogen. He or she will feel a bit dizzy but will then rapidly lose consciousness and die.” That description is used by some to argue nitrogen can bring a relatively quick end, though voices on both sides caution about extrapolating from voluntary euthanasia to state execution.
Republican-leaning critics say we should oppose methods that are genuinely torturous, but we should not let a vivid dissent become a cudgel to erase the death penalty entirely. The brutality of some crimes, the jury process, and settled legal standards matter in these decisions. Ultimately the court and the states navigate a charged intersection of law, ethics, and public safety while the country debates what humane punishment looks like.
Anthony Boyd, 54, was pronounced dead at 6:33 p.m. at Alabama’s William C. Holman Correctional Facility and died of nitrogen anoxia. The case will linger as part of the larger culture war over capital punishment, judicial temperament, and how much emotion ought to guide constitutional interpretation in life-and-death cases.
