When President Donald Trump returned to workplace in January 2025, he directed his administration to “restor[e] the death penalty.” His embrace of capital punishment helped gas a surge in executions on the state degree final yr, as I previously reported, and led the Justice Division to provide a report on “strengthening” the federal loss of life penalty, which was launched late final month.
Within the report, the Justice Division defended the usage of pentobarbital – a strong sedative – for deadly injections, criticizing the Biden administration’s dedication that it could trigger “pointless ache and struggling.” However, citing ongoing authorized challenges to pentobarbital use and associated issues acquiring the medicine utilized in deadly injections, the DOJ really useful increasing the listing of federal execution strategies by including firing squads, electrocution, and deadly gasoline.
All through the report, the Justice Division referenced previous Supreme Court docket rulings in capital circumstances, noting that the court docket “has by no means rejected a way of execution as unconstitutional.” Left unsaid was a follow-on assumption: It’s unlikely to take action anytime quickly.
In case you discover SCOTUSblog’s record of requests for stays of execution, which will, at first, look like a secure assumption. The report exhibits that the court docket solely not often feedback on – a lot much less takes up for argument – points raised by loss of life row inmates, together with challenges to execution strategies. The court docket has not paused an execution in nearly two years, and, over that interval, there have been solely a handful of famous dissents.
However when you look carefully at circumstances wherein there was acknowledged disagreement among the many justices, it’s clear that not less than a number of of them have critical questions in regards to the constitutionality of one of many execution strategies featured within the DOJ report: nitrogen hypoxia, or loss of life as the results of inhaling pure nitrogen gasoline.
Execution by nitrogen gasoline
Because the DOJ famous in its report, “deadly gasoline has an extended historical past of use as a type of capital punishment in the USA.” Previously, such executions had been usually carried out with cyanide gasoline, however right this moment’s deadly gasoline executions use nitrogen.
In nitrogen gasoline executions, a masks dishing out pure nitrogen blocks entry to oxygen, resulting in loss of life by hypoxia, or oxygen deprivation. The DOJ contended that “loss of life by nitrogen hypoxia” has the assist of “advocates of medically assisted suicide.” Nonetheless, it acknowledged an ongoing debate over its dangers, together with that it could trigger “acutely aware suffocation.”
Nitrogen hypoxia is an accredited type of execution in 5 states: Alabama, Arkansas, Louisiana, Mississippi, and Oklahoma. However in a few of these states, it will probably solely be used if deadly injection medicine are usually not out there or if an inmate affirmatively chooses it, in line with the Death Penalty Information Center. The first nitrogen gasoline execution within the U.S. was carried out in Alabama, the place deadly injection is the default method however inmates can select nitrogen hypoxia or electrocution, in January 2024, and 7 extra have taken place since then – six in Alabama and one in Louisiana, in line with the center’s records.
After the latest nitrogen gasoline execution – Anthony Boyd’s loss of life in Alabama on Oct. 23, 2025 – The New York Times highlighted rising concern about its use. Whereas nitrogen hypoxia was launched as a humane various to deadly injection at a time when policymakers, together with within the Biden administration, had been reassessing the usage of pentobarbital, observers of nitrogen gasoline executions have “described difficult-to-watch scenes wherein prisoners writhe on the gurney earlier than they’re pronounced useless.” The Instances famous that “Lee Hedgepeth, a journalist in Alabama who witnessed” Boyd’s execution, noticed “Boyd gasp for air greater than 225 instances earlier than he was pronounced useless.”
In its report, the DOJ pointed to 3 rulings on nitrogen hypoxia – two from the U.S. Court docket of Appeals for the eleventh Circuit and one from the U.S. Court docket of Appeals for the fifth Circuit, emphasizing that each courts held that this execution technique “comports with the Eighth Modification,” which prohibits “merciless and weird punishments.” The fifth Circuit held that “[b]reathing 100% pure nitrogen causes unconsciousness in lower than a minute, with loss of life following quickly inside ten to fifteen minutes. And it doesn’t produce bodily ache.” It concluded, because the DOJ put it, that “loss of life by nitrogen hypoxia was no extra painful than different strategies of execution already accredited by the Supreme Court docket.”
Justices elevate questions
The DOJ noticed that the prisoners appealed these rulings from the eleventh and fifth Circuits to the Supreme Court docket, which denied requests to pause the executions. It didn’t, nonetheless, add that there have been public dissents in two of these circumstances, nor did the DOJ interact with the issues these dissenting justices shared about nitrogen gasoline executions.
In actual fact, since January 2024, when Alabama carried out the primary such execution, the court docket’s three Democratic-appointed justices – Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson – have dissented in three capital cases involving nitrogen hypoxia, and Justice Neil Gorsuch has dissented in one. The three liberal justices questioned whether or not this technique of execution violates the Eighth Modification, whereas Gorsuch emphasised potential spiritual freedom issues.
The primary such writings got here in Smith v. Hamm, wherein Kenneth Eugene Smith challenged Alabama’s plan to make him the primary particular person within the nation to be executed by nitrogen hypoxia. Alabama had beforehand tried and did not execute Smith by deadly injection because of points accessing a vein, and, though he had previously expressed a desire for being executed by way of nitrogen gasoline, he contended in 2024 that Alabama’s plan for his second execution violated the Eighth Modification. The Supreme Court docket declined to pause his execution, however Sotomayor, Kagan, and Jackson dissented from the denial. In her dissent, Sotomayor described nitrogen hypoxia as an “untested” technique, elevating the likelihood that Smith would possibly “choke[] on his personal vomit” somewhat than dying of oxygen deprivation. “With deep disappointment, however dedication to the Eighth Modification’s safety towards merciless and weird punishment, I respectfully dissent,” Sotomayor wrote.
In her personal temporary dissenting opinion, joined by Jackson, Kagan contended that Alabama ought to have offered extra details about its new protocol, explaining that she would put the execution on maintain to provide the court docket time “to handle that essential challenge.”
The subsequent separate writing on nitrogen hypoxia got here in March 2025 in Hoffman v. Westcott, wherein Jessie Hoffman, who was Buddhist, challenged his pending nitrogen gasoline execution in Louisiana underneath the Eighth Modification and the Religious Land Use and Institutionalized Persons Act (a legislation defending sure spiritual freedoms), contending that nitrogen gasoline execution would intervene with a big religious apply: “meditative respiratory on the time of loss of life.” Buddhists, he defined, consider that “meditation and unfettered breath on the time of transition from life to loss of life determines the standard of rebirth.” Sotomayor, Kagan, and Jackson famous that they might grant Hoffman’s request for a keep of execution, however they didn’t clarify why. Gorsuch additionally dissented and wrote to elucidate his perception that the court docket ought to have despatched the case again to the fifth Circuit for fuller consideration of Hoffman’s RLUIPA declare.
The third and ultimate nitrogen hypoxia case with a separate writing was Boyd’s in October 2025. Boyd had requested the court docket to think about whether or not nitrogen gasoline execution constitutes merciless and weird punishment and expressed a willingness to be executed by firing squad as a substitute. The court docket denied his request to pause his execution. In a nine-page dissenting opinion, which was joined by Kagan and Jackson, Sotomayor invited readers to think about suffocating to loss of life. “You need to breathe; it’s a must to breathe. However you’re strapped to a gurney with a masks in your face pumping your lungs with nitrogen gasoline,” she wrote. “Your thoughts is aware of that the gasoline will kill you. However your physique retains telling you to breathe. That’s what awaits Anthony Boyd tonight.”
Sotomayor went on to explain the seven nitrogen gasoline executions that had taken place by that time, contending that “firsthand accounts from these executions” paint an image of a painful, prolonged loss of life marked by “violent actions” and gasps for air. “Seven individuals have already been subjected to this merciless type of execution,” she wrote. “The Court docket shouldn’t permit Boyd to change into the eighth.”
A doable future case
As a result of Gorsuch solely dissented within the case involving a spiritual freedom declare, it doesn’t seem that he has broader issues about execution by nitrogen gasoline. Even when he does, 4 votes are usually not sufficient to grant a request for a keep of execution, the place 5 are wanted. Nonetheless, if there have been certainly 4 votes to pause an execution, one other justice could also be prepared to supply a “courtesy fifth” out of recognition that simply four justices have to vote in favor of a petition for evaluation of it to be taken up on the deserves (though, admittedly, this “courtesy fifth” apply has not been employed constantly, as SCOTUSblog reported in 2016). In different phrases, it’s conceivable that this challenge might make it to the court docket’s oral argument docket if states proceed to make use of it.
In any occasion, the problem could also be again in entrance of the Supreme Court docket on its emergency docket as quickly as subsequent month, when Jeffrey Lee, who was sentenced to loss of life for the murders of Jimmy Ellis and Elaine Thompson, is scheduled to be executed by nitrogen hypoxia in Alabama. “The execution date” of June 11 “was set as Lee has an ongoing federal lawsuit difficult the humaneness of the nitrogen execution technique,” in line with the Associated Press. Particularly, like a number of appellants earlier than him, Lee contends that execution by nitrogen gasoline qualifies as merciless and weird punishment.