‘You Are Suffocating’: SCOTUS Justice Sonia Sotomayor Pens Bizarrely Emotional Dissent

“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.

“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.”

This is not merely an exercise in meditation. This is Sotomayor’s wholly melodramatic argument against executing Anthony Boyd by means of nitrogen gas. (RELATED: 9/11 Attackers Can Be Subject To Death Penalty, Court Rules)

Boyd was convicted of capital murder for the “intentional murder during a kidnapping in the first degree,” according to a court document from 1997. The jury returned an advisory verdict recommending the death penalty. Boyd maintains his innocence.

“I didn’t kill anybody. I didn’t participate in killing anybody,” Boyd said at his execution, according to the New York Post.

Boyd was convicted of participating in the 1993 murder of Gregory Huguley, aka “New York,” over a $200 cocaine dispute. Boyd taped Huguley’s feet as another man taped his hands and mouth, according to court documents. Yet another man proceeded to douse Huguley with gasoline, lighting the victim 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.

But let’s return to Sotomayor’s sob story. 

“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.” 

One wonders whether Boyd’s victim suffered similarly in his final moments — desperately clawing for air, hot smoke filling his lungs, flames boiling and charring his skin. 

Sotomayor argues that nitrogen anoxia execution is a form of “intense psychological torment.” 

“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. 

The cruelty of death by nitrogen anoxia remains a matter of discussion. A 2024 paper published in Experimental Physiology claims to “demonstrate” that nitrogen anoxia is “inherently inhumane.” The authors’ opinion is to be taken with a lump of salt — they begin by stating their opposition to all arguments that “the death penalty and state execution are somehow humane.” 

A 2019 review of scientific literature on nitrogen gas in capital punishment, published in Jurimetrics Journal, concludes that, under current legal jurisprudence, “using nitrogen hypoxia is a feasible method of capital punishment.” 

The Sarco pod, more commonly referred to as a “suicide pod,” kills its willing victim via nitrogen gas asphyxiation, inducing anoxia. The creator, Philip Nitschke, maintains that death by nitrogen gas is a fine way to die.

“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,” Nitschke told The Guardian in 2018. 

Nitschke obviously has a vested interest in promoting the benign nature of death by nitrogen anoxia. It’s impossible to fully relate the degree of agony or peace a dying person feels in their final moments. (RELATED: Catholic Bishops Urge Biden To Spare All Death Row Inmates Before Leaving Office)

We should strive against cruel and unusual forms of torture. But that concern is often used as a bludgeon to attack the legality of capital punishment altogether. Execution seems pretty unpleasant. No matter how one comes by it.

Anthony Boyd, 54, was pronounced dead at 6:33 p.m. at Alabama’s William C. Holman Correctional Facility, according to the New York Post, citing authorities. He died of nitrogen anoxia.

Follow Natalie Sandoval on X: @NatSandovalDC