Louisiana’s attorney general has urged the Fifth Circuit Court of Appeals to overturn a federal judge’s decision to block the execution of inmate Jessie Hoffman, citing concerns that the state’s planned use of nitrogen gas may amount to cruel and unusual punishment.
The state of Louisiana will now be prevented from executing Hoffman, who was scheduled to die on March 18 for the rape, kidnapping and murder of advertising executive Mary “Molly” Elliot. Under the court’s ruling, the execution will be on hold pending hearings in the Middle District of Louisiana to determine whether the nitrogen hypoxia method of capital punishment violates the Eighth Amendment prohibition against cruel and unusual punishment.
Hoffman’s attorneys had also raised questions about ex post facto issues since Hoffman was originally sentenced to death by lethal injection in 1998, not nitrogen gassing, as well as claims that the execution protocol violated his right to practice Buddhist breathing techniques. But Judge Shelly Dick rejected those arguments in her decision on March 11.
“The court is convinced … that the deprivation of oxygen to the lungs causes a primal urge to breathe and feelings of intense terror when inhalation does not deliver oxygen to the lungs,” Dick said in her decision granting the injunction on Eighth Amendment grounds. “The experts agree and the court finds that this causes severe psychological pain. The experts also agree that this severe psychological pain endures until the loss of consciousness.”
Dick also pointed to the speed of Louisiana’s efforts to move forward with nitrogen gassing as an execution method, largely following the protocol that Alabama uses.
“Alabama finalized its execution protocol in late August of 2023 and its first nitrogen hypoxia execution was on Jan. 25, 2024,” the judge said. “Here, Louisiana finalized its protocol in the 11th hour, allowing Hoffman virtually no time to seek redress.”
But Attorney General Liz Murrill said she filed an emergency motion on Wednesday to vacate Dick’s decision.
“I believe this execution is going to go forward as planned,” Murrill said in a statement. “We look forward to getting a decision soon from the Fifth Circuit.”
Her emergency appeal contends that Dick’s decision amounts to the type of “last-minute intervention by a federal court” that the U.S. Supreme Court has criticized multiple times. The proposed new hearings on nitrogen gassing would be largely a repeat of previously debated facts and arguments, the emergency motion says.
“... If the district court were right, then the Supreme Court, the 11th Circuit and the Alabama district courts have green-lighted four illegal executions,” the motion states. “That is preposterous – and it is notable that the district court did not deign to engage with those other decisions before reaching its preferred result.”
Hoffman’s attorneys expressed gratitude that the district court delayed the execution date, emphasizing that Louisiana law mandates that a new execution date must be set at between 30 and 45 days from the end of the litigation or the lifting of the stay.
“Louisiana law prohibits the use of nitrogen gas for animal euthanasia,” the legal team said in a statement emailed to the Louisiana Record. “Alabama is the only state to use it for prisoner executions. Each of the four gassings Alabama has conducted over the past year has been a prolonged and horrifying process that appeared to cause the condemned prisoner excruciating suffering and left witnesses deeply shaken.”
Hoffman’s lawsuit challenging the execution method was filed by the Promise of Justice Initiative (PJI), which emphasized that the plaintiff, like all Americans, is protected against state-initiated torture by the Constitution.
“We are glad that after the court heard our concerns and reviewed the evidence offered about the severe cruelty of gas suffocation as a method of killing, it concluded that gassing a human to death is an incredible enough issue that it is worthy of a trial,” PJI Executive Director Samantha Kennedy said.