The Supreme Court Hands a Surprising Death-Penalty Defeat to Alabama

A shadow docket reveals that for some justices, there are limits to how cruel an execution can be. And for others, there are none.

The Supreme Court did something extraordinary on Thursday night: It refused to help the state of Alabama carry out an execution. Since the retirement of Justice Anthony Kennedy in 2018, the Supreme Court’s conservative majority has almost never intervened in capital cases on the defendants’ behalf. The justices have even overridden lower courts’ stays so that executions could take place on the state’s preferred schedule, even in cases where serious constitutional issues were at stake.

But in Lovelace v. Lee, the court declined to step in at Alabama’s request. The case is important for three reasons. First and foremost, it appears to be the first successful constitutional challenge to a specific execution method since the Eighth Amendment’s ratification in 1791. Jeffrey Lee, a death-row prisoner who was convicted of killing two people in 1998, filed a federal lawsuit last year to challenge Alabama’s plan to execute him via nitrogen hypoxia. Alabama adopted the new method in 2018; Lee argues that it would violate the Eighth Amendment’s ban on cruel and unusual punishment.

Nitrogen-hypoxia executions are fairly simple in theory. Earth’s atmosphere is roughly 78 percent nitrogen and 20 percent oxygen, with trace elements rounding out the remaining two percent. Humans have evolved to breathe large amounts of nitrogen, and we can do so indefinitely as long as some oxygen is present. Alabama’s plan is to simply subtract the oxygen—or, more accurately, to place a mask over Lee’s face so that he only breathes pure nitrogen until he dies.

The state has already killed seven death-row prisoners by this method; Louisiana also executed a man via nitrogen hypoxia last year. Three other states have authorized the method. Proponents describe it as relatively simple and largely painless, even compared to lethal injection. Justice Sonia Sotomayor described it differently in a dissenting opinion last year:

Take out your phone, go to the clock app, and find the stopwatch. 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.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.

Take out your phone, go to the clock app, and find the stopwatch. 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.

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.

Sotomayor said that the death-row prisoner in that case would “immediately convulse,” “gasp for air,” and “thrash violently against the restraints holding him in place as he experiences this intense........

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