Supreme Court, rarely sympathetic in death penalty cases, finds a few with merit this term
The death penalty countdown clock always seems to be ticking at the U.S. Supreme Court.
New capital sentences in the United States have been trending downward since a peak of 325 in 1986 to just 23 last year, according to the Death Penalty Information Center. But the states carried out 47 executions in 2025, up from 25 the year before. So far this year, 15 death row inmates have been executed.
Most, though not all, death penalty defendants seek 11th-hour relief that reaches the Supreme Court on its emergency docket. The justices deny almost all of those applications, usually without dissent. The states are sometimes the ones seeking high court intervention, to overturn a lower court stay blocking an execution. The states fare better under the conservative-dominated court.
“The majority of members of this court are focused on finality, and they are deeply suspicious about the motivations of defendants and their lawyers” in capital cases, says Robin M. Maher, the executive director of the Death Penalty Information Center, which says it is not against the death penalty itself but is critical of problems with its application.
Still, this term has seen a handful of victories for death row inmates in merits cases fully briefed and argued before the court as well as in one emergency docket case.
Last week, the court provided a rare win to a death row inmate, however temporary it might turn out to be, by rejecting Alabama’s emergency request to allow it to execute convicted murderer Jeffery Lee by nitrogen hypoxia.
A federal district judge had issued a permanent injunction barring that method of execution for Lee, ruling that Alabama’s nitrogen asphyxiation protocol violated the Eighth Amendment. The Atlanta-based 11th U.S. Circuit Court of Appeals refused to stay the injunction.
Alabama came to the Supreme Court on June 11, with state Attorney General Steve Marshall arguing that the lower-court rulings in Lee’s case “portend the first-ever permanent ban on a legislatively enacted method” of execution and “would expand the expand the concept of cruelty well beyond the bounds of the Eighth Amendment.”
The high court declined Alabama’s request without comment in Lovelace v. Lee the same day, with Justices Clarence Thomas, Samuel Alito and Neil Gorsuch recording their dissent.
Georgetown University Law Center professor Steven Vladeck, who filed an amicus brief in opposition to Alabama’s request, wrote on his One First Substack site that because neither the majority nor the dissenters wrote an opinion, “we’re left to figure out why, given how well states have fared when seeking emergency relief in death penalty cases, this case was different.”
A dramatic dissent in nitrogen gas case
Lee’s case was not the first involving the relatively newer protocol of nitrogen hypoxia to come before the high court.
In January 2024, another Alabama death row inmate scheduled to be the first in the nation executed by nitrogen gas sought emergency relief from the Supreme Court, which denied the request over the dissents of Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Sotomayor, in Smith v. Hamm, called the method “untested.”
Last October, early in the court’s current term, in yet another Alabama death row inmate’s case, Sotomayor intensified her rhetorical emphasis.
“Take out your phone, go to the clock app, and find the stopwatch,” Sotomayor began her dissent in Boyd v. Hamm, joined by Kagan and Jackson. “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,” she continued. “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.
“That is what awaits Anthony Boyd tonight.”
By that time, Alabama and Louisiana had executed seven people using the method, with three other states approving its use.
“The firsthand accounts from those executions reveal that nitrogen hypoxia is not at all what it was promised to be,” Sotomayor added.
“This was a striking opinion about what this kind of execution can look like,” says Daniel Harawa, a professor and director of the Federal Appellate Clinic at New York University School of Law who himself represents a separate client on Alabama’s death row.
He suggests that the increased use of nitrogen gas and the revival of the firing squad in several states (South Carolina carried out the first such execution in 15 years last year) leads him to believe the Supreme Court “is going to have to take up a methods-of-execution case at some point in the near future.”
Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, which promotes public safety and victims’ rights and is not against the death penalty, defends Alabama’s efforts to use nitrogen gas.
“Nobody’s being tortured despite all the histrionics,” he says.
‘No momentum to move the needle’
In 2015, death penalty opponents were heartened when then-Justice Stephen Breyer issued a dissent, joined by then-Justice Ruth Bader Ginsburg, that sharply questioned the constitutionality of capital punishment. He read at length from the bench portions of his dissent in Glossip v. Gross, in which a 5-4 majority rejected an Oklahoma death row inmate’s challenge to a drug used in the state’s lethal-injection protocol.
But the call by Breyer, who retired in 2022, for reconsideration of capital punishment did not lead to major change.
“It seems like this is a court that feels really comfortable with the idea of capital punishment,” Harawa says. “I think Justice Breyer is missed in this moment. Nobody on the court has taken up his mantle of just being deeply disturbed with capital punishment more broadly.”
This term, the court has denied some emergency requests for stays of execution for some 25 defendants, according to SCOTUSblog. It has granted one request (by Texas) to vacate a stay of execution issued by a lower court, and refused another state’s such request (Alabama’s, in the Lee case over nitrogen hypoxia.)
It is a bit harder to say how many cert petitions from death row inmates it has rejected, given the thousands of overall cases on its merits docket. One notable rejection came this week, when the court declined without comment to hear the case of a Texas death row inmate who had challenged his murder conviction that relied on his identification by a witness who had undergone “investigative hypnosis” by the police.
The magicians Penn & Teller filed an amicus brief in Flores v. Texas that said, “Use of investigative hypnosis as a purported memory-retrieval tool is precisely the type of deceptive practice that Penn & Teller feel duty-bound to expose.”
The technique as used in Flores’ case “was junk science of the worst sort,” they said.
But the court has ruled for death row inmates in two merits cases this term and dismissed another case after oral argument in a way that preserves a lower-court ruling for the inmate.
In Pitchford v. Cain, on May 28, the court ruled 5-4 to vacate the conviction and death sentence of a Mississippi defendant, ruling that the Mississippi Supreme Court wrongly determined that Pitchford had waived his opportunity to rebut the prosecutor’s purported race-neutral reasons for striking Black jurors.
In Whitton v. Dixon, on June 1, the court issued an unsigned summary ruling siding with a Florida death row inmate because a federal appeals court had improperly considered DNA evidence not presented to the jury in assessing a witness’s testimony.
And on May 21, a 5-4 court dismissed the cert grant in Hamm v. Smith as “improvidently granted,” allowing a federal appeals court ruling to prevail that stated an Alabama man could not be executed because its review of his IQ scores and other evidence led it to uphold a district court’s conclusion that the defendant had an intellectual disability.
Sheidegger of the Criminal Justice Legal Foundation says the Pitchford case is an example reflecting the court’s interest in race not being misused in jury selection. And he acknowledges that there will be the occasional win for death row inmates in other contexts.
But in general, on the current court, he says, “there is no momentum to move the needle in either direction on capital punishment.”
Maher of the Death Penalty Information Center says she sees “a real unwillingness to engage” by the justices on most capital punishment issues, with the conservative majority signaling its willingness to leave many questions to the states.
“But I would never say that I don’t have hope that this court will recognize the injustices and serious claims in many of these cases,” she says.
See also:
Supreme Court spares Alabama man from nitrogen gas execution
Judge halts use of nitrogen gas for execution, citing cruel and unusual punishment
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