The state of Alabama has proved that it is incapable of consistently carrying out executions that conform to the Eighth Amendment’s ban on cruel and unusual punishment. After a series of botched lethal injections in 2022, correctional officials in Alabama ushered in a new method of execution that would sidestep the legal challenges resulting from those debacles. This new method amounts to suffocation by gas, specifically by the inhalation of pure nitrogen, a technique that was proposed by a California screenwriter in a 1995 National Review article titled “Killing With Kindness: Capital Punishment by Nitrogen Asphyxiation.” Unlike past execution techniques known for horrendous and grisly outcomes—such as hanging, electrocution, poison gas, and lethal injection—nitrogen hypoxia was promised to be humane and painless.
That experiment has utterly failed. Yesterday, Alabama executed Anthony Boyd, a 54-year-old man who was convicted of a 1993 murder related to a drug transaction. (Boyd maintained his innocence throughout his incarceration, and reiterated it in his final words.) Prior nitrogen suffocations in Alabama were deeply troubled—Kenneth Eugene Smith, the first victim of execution by nitrogen hypoxia in the world, reportedly remained conscious for several minutes after inhaling the lethal gas, thrashing uncontrollably on the gurney. Nevertheless, correctional officials decided to subject Boyd to the same ghastly process. But Boyd’s execution was, according to the Alabama reporter Lee Hedgepeth, even more spectacularly brutal than Smith’s. Strapped down with a gas mask affixed to his face, Boyd gasped for air more than 200 times. His eyes rolled back entirely as his body strained and shuddered against his restraints. Boyd took more than 30 minutes to die, making his execution the most protracted nitrogen suffocation in history.
Prisoners in Alabama are sequenced for execution by a secret calculus known only to state officials, and I find myself wondering if Boyd was prioritized specifically because he was sophisticated and thoughtful: He served as the chairman of Project Hope to Abolish the Death Penalty, a prisoner-led advocacy group devoted to ending capital punishment. I met Boyd in 2022 through his work with Project Hope; he was intelligent, practical, and shrewd. He was always available to answer questions or brainstorm ideas, though he was careful to avoid observation by hostile prison officials.
Boyd’s aspirations were higher than protesting his own execution. He wanted to bring about the destruction of capital punishment in Alabama altogether, publishing a newsletter called On Wings of Hope, which chronicled the lives and concerns of men facing death. “As you all know, right now I’m in a battle for my life and justice,” Boyd wrote in his final editorial for the newsletter. “I would love to tell all of you that I believe truth, justicе, and human dignity will prevail, but we’re in Alabama where such things are few and far between.” Boyd noted that the state had questioned him repeatedly about his past work for PHADP. “We are not out numbered, we are not organized,” Boyd wrote, an exhortation for those to follow in his footsteps. “Keep fighting and keep Hope Alive. Be the other voice, until you are heard.”
Boyd noted in that last missive that “courts have become so hell bent on helping states preserve their killing machines that they’ve lost their compass, and the reason they went into law in the first place…. JUSTICE!” He was entirely right, and his contention was validated in a dissent issued by Supreme Court Justices Sonia Sotomayor and Elena Kagan to his final court appeal. “You want to breathe; you have to breathe,” Sotomayor wrote in an evocative passage, “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.” In permitting Boyd’s suffocation, she added, “this Court thus turns its back on Boyd and on the Eighth Amendment’s guarantee against cruel and unusual punishment.” Sotomayor’s prediction has now been proved prescient, though the odds that more of her fellow justices will heed her concerns the next time around remain low.
Throughout American history, states have struggled to comply with the Eighth Amendment while carrying out executions, flitting from method to method as each is tried and failed. Nitrogen hypoxia is only the latest in this long-term quest for a humane style of execution. All along, this effort has been absurd; there is no way to kill someone without some element of torture, either psychological, physical, or both. And although states and the federal government might continue testing various novel methods of execution, the pressure to locate a feasibly humane way to execute has never been lower, precisely because, as Boyd and Sotomayor both pointed out, courts no longer seem invested in defending the constitutional rights of incarcerated citizens. Boyd’s mission to rid Alabama of the death penalty may well succeed in the very long run, as the death penalty has by many measures declined over the course of time. But in the near term, there may be much more torture ahead.
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