Supreme Justices Sonia Sotomayor and Ketanji Brown Jackson are in a tight competition for most flagrantly incompetent liberal member of the Supreme Court. Jackson appears to be well ahead, but Sonia let her inner sensitive Latina run wild in her recent emotional dissent in Boyd v. Hamm, in which the Supreme Court turned down the plea of a condemned prisoner to force Alabama to execute him by firing squad rather than by the relatively new method of nitrogen gas asphyxiation. (Sotomayor’s lame dissent was joined by her two Democratic, reflex-Left wing colleagues because they are nice.)
Some salient facts: Anthony Boyd was convicted of murder in the first degree because he and two drug-dealing comrades killed another drug dealer by binding him and setting him on fire. I’d say Boyd was ethically estopped from complaining that his own execution method was “cruel and unusual,” but he did, even though he had earlier been given a choice between death by firing squad and death by nitrogen, and picked the latter. This is more consideration than his victim was given; at least nothing in the trial transcript indicates that the victim was offered a choice between being roasted alive or having his head bashed in with a rock.
Sonia, however, want us all to feel horror that Boyd, who was executed after his last-ditch appeal to SCOTUS failed, suffered pain in the process of dying. “Take out your phone, go to the clock app, and find the stopwatch,” Sotomayor opens her October 23 dissent. “Click start. Now watch the seconds as they climb. Three seconds come and go in a blink. At the thirty second 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.”
Wow. That’s some impressive legal argument.
My dissent from the dissent: I don’t care, and nobody should. The endless obstacles bleeding heart judges and ethically-confused death penalty activists have thrown in the way of our society’s obligation to set and enforce standards of conduct are destructive and costly. Boyd had a choice, and may have chosen the nitrogen method specifically so his lawyers could use it to stall the arrival of his day of reckoning. The murder he was convicted of committing was particularly heinous and cruel: I might be persuaded to endorse a system in which convicted murderers are executed in the same manner as their victims. But for such an individual to beg for a less “cruel” form of punishment is Death Row chutzpah. Yet Sotomayor fell for it.
The issue ultimately came down to whether death by nitrogen is too psychologically cruel. Evidence presented in lower courts indicate that this method renders the condemned unconscious in seconds, even though his body may convulse as he dies.
“Boyd more than made his case…that nitrogen hypoxia likely poses a substantial risk of conscious terror and psychological pain and that the firing squad is a sufficient alternative,” Sonia wrote. “The District Court, however, justified its contrary conclusion by drawing a false equivalence. In its view, prisoners facing death by nitrogen hypoxia, like all prisoners facing execution, experience distress knowing that death is near. As a result, distress is an “unavoidable consequenc[e] of capital punishment under any method of execution.” That the distress continues when the gas is turned on is therefore unremarkable.
That analysis is blind to the reality of what will happen to Boyd in this execution chamber and the additional and unnecessary psychological terror he will experience. Boyd will, of course, experience the same distress that all condemned men suffer in anticipation of their execution by the State. The claim here, however, is that, on top of that ordinary, anticipatory distress, nitrogen hypoxia will profoundly add to Boyd’s suffering after the execution begins and while it is being carried out to completion. As the District Court assumed, it takes at least two, and could take up to seven, full minutes for someone to lose consciousness—that is, up to seven full minutes of conscious, excruciating suffocation.”
Aw, poor guy.
We have been discussing of late how many parts of the Constitution contain language that is ambiguous and infuriatingly inexact. The Eighth Amendment’s prohibition on “cruel and unusual punishment” is a long-running example. The Founders were referring to practices like drawing and quartering, but the modern Court has held that the standard of what is unusual and cruel evolves as civilization evolves. Clarence Darrow maintained that all punishment for criminals was cruel, and past SCOTUS cases have held that as capital punishment itself becomes rare in the U.S., it might even qualify as unusual. The current Mad Left holds that ejecting people in our country illegally is “cruel,” as is locking up poor people who steal.
Sotomayor is squarely in the “justice is inherently cruel” camp too often to be trusted, and her argument in this case is a throbbing example. A convicted murderer who has to suffer—maybe—a couple minutes of suffering on the way to Hell should not be seen as a victim of cruel and unusual punishment, but of appropriate justice that should have taken far less time to inflict only in the sense that we allow appeals in death penalty cases to a ridiculous degree. Sonia’s pity is especially ill-placed in this situation, when Boyd deliberately chose the “cruel” means of his own demise.
Ethics Alarms 
Decades ago, my then 14-year old brother accidentally set fire to himself and the house. He was lucky to survive. There were many surgeries to smooth out the very visible scars that he still bears. Burning alive is not an instant death. It is extraordinarily painful. I wonder if Justice Sotomayor ever thought of how many long seconds it took the victim to die?
That was my thought, too. I wonder if she would think differently if someone had countered with how long it took for the original victim to die burning alive. Something like, “Hold your hand in a flame, and keep it there for the time it took for Boyd’s victim to die.” Even imagining such a thing is terrible.
Coincidentally, many fire related deaths are asphyxiation. The flames burn the throat, and in response the lyanix responds by clamping shut. Unlike what Byod experienced, there would be the panic of needing to breathe while simultaneously being unable to. All the while suffering from the intense pains of the burns.
Byod got off very easily. Any panic breathing was mental and not physiological.
Sorry Sonia. The only thing that came to my mind while reading your little stopwatch exercise was being knocked out at the surgicenter with the Michael Jackson drug for a routine scoping.
“that is, up to seven full minutes of conscious, excruciating suffocation.”
Someone should point out to the Justices that the air we all breathe is about 78 % nitrogen and 21% O2. You do not feel you are suffocating by breathing 100% nitrogen. What happens is the same as hypoxia from CO or CO2. Once your O2 level drops far enough to about 50% you black out. You do not know it is even happening which is why people do not realize they are being poisoned by carbon monoxide or when free divers experience shallow water blackout and drown.
When the partial pressure of nitrogen increases in the blood stream divers call that nitrogen narcosis which is simply confusion and in some case euphoria. The following is taken from Wikipedia and is as about as accurate as one can get outside a medical school.
“Narcosis results from breathing gases under elevated pressure, and may be classified by the principal gas involved. The noble gases, except helium and probably neon,[2] as well as nitrogen, oxygen and hydrogen cause a decrement in mental function, but their effect on psychomotor function (processes affecting the coordination of sensory or cognitive processes and motor activity) varies widely. The effect of carbon dioxide is a consistent diminution of mental and psychomotor function.[5] The noble gases argon, krypton, and xenon are more narcotic than nitrogen at a given pressure, and xenon has so much anesthetic activity that it is a usable anesthetic at 80% concentration and normal atmospheric pressure. Xenon has historically been too expensive to be used very much in practice, but it has been successfully used for surgical operations, and xenon anesthesia systems are still being proposed and designed.[6]Signs and symptoms
Due to its perception-altering effects, the onset of narcosis may be hard to recognize.[7][8] At its most benign, narcosis results in relief of anxiety – a feeling of tranquillity and mastery of the environment. These effects are essentially identical to various concentrations of nitrous oxide. They also resemble (though not as closely) the effects of alcohol and the familiar benzodiazepine drugs such as diazepam and alprazolam.[9] Such effects are not harmful unless they cause some immediate danger to go unrecognized and unaddressed. Once stabilized, the effects generally remain the same at a given depth, only worsening if the diver ventures deeper.[10]
The Justices need to stay in their own lane and not try to make judgements based on information they did not or chose not to evaluate. If anything, execution by nitrogen gas would probably the most painless way to die.
Excellent work, Chris…as usual!!
This is common knowledge among scuba divers. The events that inspired the movie Apollo 13 involved the potential for hypercapnia which is breathing too much CO2 . As the fraction of O2 fell CO 2 increased and breathing was not labored or even painful There was no evidence of what we consider suffocation when we are unable to breathe because the act of inspiration and expiration (breathing) continues unabated.
I noted the articles I read on the case decided to completely gloss over the details of the murder. They simply called it “a drug dealing related death.” Clearly an intention omission due to the horrific nature of the murder.
I’m against the death penalty.
if we are going to have it, it should be administered swiftly and painlessly. Nitrogen asphyxiation seems to qualify.
So would shooting in the base of the skull from behind. A firing squad, not so much, but still if carried out competently the only really damaging thing is the psychological effect on the firing party.
I’m all for the firing squad, but as far as I’m concerned, any quick method of execution is perfectly fine.
I oppose execution in all but the most egregious cases of premeditated, deliberate murder, particularly of innocents. This one barely qualifies due to the fact that the miscreant cruelly murdered another drug dealer. The victim received condign justice, in my view, and the murderers save the taxpayers some money by disposing of the lowlife.
I think method of the murder should matter. Immolation is so particularly cruel it cries out for more punishment no matter how much the victim was a low life.