Recognizing “Superadded” Psychological Torment Under the Eighth Amendment: Justice Sotomayor’s Dissent in Boyd v. Hamm

Introduction

This commentary examines the U.S. Supreme Court’s denial of a stay of execution and certiorari in Boyd v. Hamm, No. 25A457 (25-5928) (U.S. Oct. 23, 2025), and Justice Sotomayor’s detailed dissent (joined by Justices Kagan and Jackson). Although the Court issued no opinion accompanying its summary denial, the dissent sets out a comprehensive constitutional critique of executions by nitrogen hypoxia and frames a doctrinally significant approach to “superadded” psychological pain under the Eighth Amendment. The case arises from Alabama’s efforts to execute Anthony Boyd using nitrogen hypoxia, with Boyd proposing death by firing squad as a feasible and readily implementable alternative that would significantly reduce the risk of severe pain.

The key issues presented are:

Whether nitrogen hypoxia, as implemented by Alabama (and used in Louisiana), imposes “superadded” pain—particularly psychological terror—that renders the method cruel and unusual under the Eighth Amendment.
Whether the firing squad constitutes a feasible and readily implemented alternative that would significantly reduce the risk of severe pain, as required by Buckley-era method-of-execution jurisprudence (Glossip v. Gross, Bucklew v. Precythe, and Baze v. Rees).
Whether the lower courts erred in rejecting Boyd’s Eighth Amendment challenge by conflating the ordinary anticipatory distress common to all executions with the post-initiation, prolonged psychological torment inherent in nitrogen hypoxia.

Justice Sotomayor’s dissent stands out because it leverages a now-developed evidentiary record from seven nitrogen hypoxia executions. It contends that these executions are not the “painless” procedures originally promised, but instead inflict minutes of consciousness accompanied by violent convulsions and the severe psychological suffering associated with suffocation. The dissent would have granted a stay and certiorari to address these constitutional issues.

Summary of the Opinion

The Supreme Court denied Boyd’s application for a stay of execution and his petition for a writ of certiorari without an accompanying majority opinion. Justice Sotomayor, joined by Justices Kagan and Jackson, dissented.

The dissent’s core points are:

Developed record of harm: Alabama and Louisiana have carried out seven executions by nitrogen hypoxia. Eyewitness accounts and record evidence describe inmates remaining conscious for two to four minutes (sometimes longer) after nitrogen flow begins, with violent convulsions, gasping, and thrashing, and time to death ranging roughly 16–23 minutes (App. 36a–42a; App. to Pet. for Cert. 25a).
Psychological torment counts: Under Bucklew, “superadded” pain can be mental as well as physical. The dissent emphasizes that minutes of conscious suffocation produce severe psychological suffering—distinct and additive to the baseline anticipatory anxiety inherent in any execution.
Alternative method: The District Court found the firing squad would render a person unconscious in 3–6 seconds (App. 64a), making it a feasible and readily implementable alternative that significantly reduces the risk of severe pain.
Legal error below: The District Court and Eleventh Circuit erred by treating the unique, post-initiation terror of nitrogen hypoxia as equivalent to the general anticipatory distress present in all executions, and by undervaluing the firing squad’s dramatic reduction in duration of conscious suffering.
Relief sought: The dissent would grant a stay and certiorari because Boyd showed a likelihood of success on his Eighth Amendment claim under Bucklew’s comparative framework.

Analysis

Precedents Cited and Their Influence

Baze v. Rees, 553 U.S. 35 (2008) (plurality)
- Baze introduced the “substantial risk of serious harm” inquiry for method-of-execution challenges and warned against methods that risk suffocation. Justice Sotomayor’s dissent invokes Baze to underscore that a substantial risk of suffocation (and its attendant suffering) implicates the Eighth Amendment.
- Although Baze concerned lethal injection, its framework informs modern comparative analysis by identifying what counts as constitutionally significant pain.
Glossip v. Gross, 576 U.S. 863 (2015)
- Glossip refined the requirement that prisoners challenging a method must identify a feasible, readily implemented alternative that significantly reduces risk of severe pain.
- Justice Sotomayor’s dissent criticizes the necessity and “macabre” nature of this comparative exercise but applies it faithfully: the firing squad’s near-immediate loss of consciousness (seconds, not minutes) dramatically reduces pain compared to nitrogen hypoxia.
Bucklew v. Precythe, 587 U.S. 119 (2019)
- Bucklew is central. It states that the Eighth Amendment is violated when a method “superadd[s]” terror, pain, or disgrace to a death sentence and confirms that mental pain counts: cruelty is not limited to physical torment.
- The dissent reads Bucklew to require courts to evaluate psychological torment during the execution itself, not just pre-execution distress. On that measure, nitrogen hypoxia’s minutes-long conscious suffocation constitutes “superadded” psychological pain, especially when an alternative (firing squad) would induce unconsciousness in seconds.
- Bucklew also requires that the State lack a legitimate penological reason to reject the proposed alternative. The dissent indicates Alabama’s justifications are not supported by the developed record and are undermined by the consistency of observed suffering across multiple executions.
Watts v. Indiana, 338 U.S. 49 (1949)
- While not a method-of-execution case, Watts recognizes mental torture as a form of constitutional harm. The dissent invokes this broader constitutional sensibility to fortify the proposition that the Eighth Amendment protects against torture “of mind as well as body.”
Dunn v. Price, 587 U.S. 929 (2019) (Breyer, J., dissenting from grant of application to vacate stay)
- Referenced to note earlier skepticism toward State assurances about nitrogen hypoxia’s supposed painlessness, pre-dating the present empirical record.
Smith v. Hamm, 601 U.S. ___ (2024) (Sotomayor, J., dissenting from denial of stay and cert)
- Justice Sotomayor’s prior dissent flagged concerns about Alabama’s opaque protocol and the lack of empirical grounding in claims of a painless nitrogen hypoxia death. Boyd returns to the subject with the very record that was previously missing.
Hall v. Florida, 572 U.S. 701 (2014)
- Cited for its invocation of dignity as a constitutional value. The dissent stresses that perpetuating a method that inflicts gratuitous suffering diminishes the Nation’s dignity.

Legal Reasoning

Justice Sotomayor’s reasoning proceeds in three steps: (1) what the record shows about nitrogen hypoxia; (2) why that evidence satisfies Bucklew’s “superadded pain” threshold (with psychological pain on equal footing); and (3) why the firing squad is a constitutionally adequate alternative that the lower courts undervalued.

1) The developed record of nitrogen hypoxia

The dissent canvasses seven executions by nitrogen hypoxia in Alabama and Louisiana. Across cases (including those of Kenneth Smith, Alan Miller, and Carey Grayson), witnesses reported immediate and “violent” convulsions when nitrogen flow began; gasping; thrashing against restraints; eyes open; and pronounced death typically 16–18 minutes after initiation (App. 36a–42a). Alabama’s suggestion that Kenneth Smith’s prolonged consciousness was caused by “breath holding” is, in the dissent’s view, refuted by similar outcomes in later executions.

Crucially, the District Court credited expert agreement on two points:

“Agonal breathing” is not itself proof of pain because it can be involuntary and persist after loss of consciousness (App. 43a–44a).
But severe psychological pain continues after nitrogen starts flowing and lasts until loss of consciousness; the key question is how long consciousness persists (App. 51a–52a).

For analytical purposes, the District Court assumed a typical 2-minute period to loss of consciousness (sometimes up to 4 minutes, and found that even at 7 minutes, its ultimate conclusion would be unchanged) (App. 52a–53a & n.34). That assumption is the fulcrum of the dissent’s constitutional analysis: two to seven minutes of conscious suffocation is not speculative; it is rooted in, and consistent with, eyewitness accounts in the present record.

2) Psychological terror is “superadded” pain under Bucklew

Bucklew frames the Eighth Amendment inquiry as whether the State’s chosen method “superadds” terror, pain, or disgrace to the sentence of death. It does not distinguish between physical and mental suffering; both can be cruel. The dissent argues that nitrogen hypoxia imposes unique, execution-specific psychological torment beyond ordinary pre-execution anxiety: the conscious experience of suffocation for minutes while the body’s “primal urge to breathe” confronts the mind’s awareness that each breath hastens death (App. 51a).

The District Court’s error, per the dissent, was to collapse this post-initiation torment into baseline anticipatory distress (App. 62a–64a). That “false equivalence” disregards the very finding that loss of consciousness takes minutes after gas starts flowing. The dissent insists this minutes-long window of conscious panic and terror is exactly the sort of “superadd[ed]” suffering the Eighth Amendment forbids—particularly where a substantially less tormenting alternative is available.

3) The firing squad as a feasible, readily implementable, and less painful alternative

The District Court found the firing squad would render someone unconscious in 3–6 seconds (App. 64a) and is “feasible” and “readily implemented” (App. 66a). In raw terms, the difference between 3–6 seconds and 2–7 minutes is stark. Even accepting that the firing squad could involve some brief physical pain and terror, the dissent emphasizes that nitrogen hypoxia’s “period of terror” is up to 140 times longer (App. 55a, 64a).

Under Bucklew and Glossip, an inmate must show that the alternative method would “significantly reduce a substantial risk of severe pain” and that the State lacks a legitimate penological reason for rejection. On the dissent’s view, both showings are satisfied: seconds to unconsciousness is a significant reduction from minutes of conscious suffocation, and the State’s explanations do not overcome the record’s consistency of prolonged suffering across multiple executions. The Eleventh Circuit’s deferential “no abuse of discretion” stance is, in this telling, misapplied because it rests on a mischaracterization of the decisive facts (the timing and nature of post-initiation suffering).

Impact

While the Court’s summary denial creates no new binding precedent, the dissent crystallizes several propositions likely to shape future litigation:

Psychological pain is constitutionally cognizable: Lower courts will confront more robust expert records distinguishing anticipatory anxiety from post-initiation, method-specific terror. The dissent equips litigants with a doctrinal pathway to argue that minutes of conscious suffocation is “superadded” pain.
Evidence from actual executions matters: Earlier nitrogen hypoxia litigation suffered from speculative or redacted protocols. With multiple executions now documented, courts will increasingly be asked to ground constitutional analysis in empirical observations and expert testimony about duration of consciousness and the manifestations of suffocation.
Firing squad as a benchmark alternative: The dissent’s emphasis on a 3–6 second path to unconsciousness positions the firing squad as a serious comparator. Expect increased proposals of the firing squad as a feasible, readily implementable alternative, particularly in jurisdictions that can adopt or implement it without protracted delay.
State justifications under scrutiny: Assertions that “inmate noncooperation” accounts for visible suffering will face skepticism when later executions show the same pattern. States may need to offer concrete, penological reasons to resist alternatives—reasons that withstand the empirical record.
Potential doctrinal inflection point: The dissent signals discomfort with the “comparative exercise” required by Glossip and Bucklew, suggesting eventual reconsideration. If the Court revisits the framework, the role of psychological pain—and the permissibility of methods that predictably involve minutes of conscious torment—will feature prominently.

In practical terms, the dissent increases litigation pressure on nitrogen hypoxia protocols and encourages evidentiary development focusing on time to loss of consciousness and the character of observable responses (convulsions, gasping, thrashing). It also incentivizes States either to justify nitrogen hypoxia with stronger, empirically grounded safeguards or to consider alternatives that more reliably shorten the duration of conscious suffering.

Complex Concepts Simplified

Nitrogen hypoxia: A method of execution in which pure nitrogen displaces oxygen in the lungs, leading to hypoxia (oxygen deprivation). The controversy centers on how long a person remains conscious after gas flow begins and what the person experiences during that interval.
Agonal breathing: Involuntary gasping that can occur as a person nears death. Both sides’ experts agreed agonal breathing is not, by itself, proof that the person feels pain; it can occur after loss of consciousness (App. 43a–44a).
“Superadded” pain (Bucklew): The Eighth Amendment prohibits methods that add extra terror, pain, or disgrace beyond what is inherent in a constitutional execution. This includes psychological pain during the execution itself.
Feasible and readily implemented alternative (Glossip/Bucklew): To challenge a method, the inmate must propose another method that the State can carry out practically and without undue delay, and that would significantly reduce the risk of severe pain.
Comparative analysis: Courts must compare the pain risks of the current method with the proposed alternative. In Boyd, this meant contrasting minutes of conscious suffocation under nitrogen hypoxia with seconds to unconsciousness by firing squad.
Stay of execution and certiorari: A stay temporarily halts an execution, typically requiring a strong showing of likely success on the merits and irreparable harm. Certiorari is the discretionary review mechanism by which the Supreme Court hears cases. The Court denied both here, prompting the dissent.

Conclusion

Boyd v. Hamm does not create a new binding rule because the Court summarily denied relief. Yet Justice Sotomayor’s dissent offers a powerful and carefully structured roadmap for assessing nitrogen hypoxia—and, more broadly, any execution method that predictably entails minutes of conscious suffering. Anchored in Bucklew, Glossip, and Baze, the dissent insists that psychological pain is squarely within the Eighth Amendment’s ambit; that the relevant suffering is what occurs after the execution commences; and that the firing squad, rendering unconsciousness in seconds, is a constitutionally meaningful alternative to minutes-long suffocation.

The dissent’s factual synthesis—drawn from seven nitrogen hypoxia executions—undercuts prior assurances of a “painless” death and calls for judicial intervention to halt what it characterizes as an ongoing constitutional experiment. Even as a dissent, it is likely to shape the evidentiary and doctrinal contours of future method-of-execution litigation: how the State’s proof is tested, how alternatives are measured, and how courts weigh psychological terror in the crucible of the Eighth Amendment. In that sense, Boyd marks a pivotal moment in the debate over execution methods, one that foregrounds dignity and the constitutional imperative to avoid superadded pain—of body and of mind.