A federal appeals court has overturned an injunction that put Tuesday’s scheduled execution of Jessie Hoffman on hold, potentially clearing the way for the inmate to die at Louisiana State Penitentiary in Angola by nitrogen gassing.
The Fifth Circuit Court of Appeals on Friday rejected the preliminary injunction issued last week by Judge Shelly Dick of the Middle District of Louisiana, calling the decision an overstep in the exercise of judicial powers.
“The preliminary injunction is not just wrong,” the appeals court said. “It gets the Constitution backwards, because it’s premised on the odd notion that the Eighth Amendment somehow requires Louisiana to use an admittedly more painful method of execution – namely, execution by firing squad rather than by nitrogen hypoxia.”
But the 19th Judicial District Court in Baton Rouge has also put in place a temporary restraining order so the court can hold a hearing on Tuesday morning to review whether the nitrogen gassing method of execution may violate Hoffman’s religious rights to practice his Buddhist faith. Hoffman was tried and convicted of the rape, kidnap and murder of advertising executive Mary “Molly” Elliot.
In the federal litigation, Hoffman’s attorneys had argued that death by firing squad would be a more suitable alternative than nitrogen gassing, which the lawyers said would be more prolonged and torturous compared to a firing squad.
But the appeals court said such an argument contravenes Supreme Court precedent, leaving justices no choice but to vacate the preliminary injunction.
But Hoffman’s attorney, Cecelia Kappel, said the Fifth Circuit should have embraced evidence that showed the nitrogen gas execution protocol could lead to prolonged psychological suffering.
“Particularly given that the state only announced its new lethal gas protocol and set Jessie’s execution date last month, and released the protocol to the public on the eve of the March 7 hearing, the courts should not allow any execution to take place until there has been a thorough adjudication of whether Louisiana’s nitrogen gas protocol violates the Eighth Amendment,” attorney Cecelia Kappel said in a statement emailed to the Louisiana Record.
Attorneys representing Hoffman have also filed an appeal with the U.S. Supreme Court.
The Fifth Circuit’s opinion stressed that experts from both sides of the legal dispute concluded that nitrogen hypoxia does not cause physical pain and that death by firing squad – which the U.S. Supreme Court has deemed constitutional – would cause some pain. And the court also rejected the arguments presented by Hoffman’s attorneys that nitrogen gassing would cause excessive psychological terror.
“In sum, the district court didn’t just get the legal analysis wrong – it turned the Constitution on its head, by relying on an indisputably more painful method of execution as its proposed alternative,” the Fifth Circuit opinion stated. “Reasonable minds can differ on the proper understanding of the Eighth Amendment in certain cases, but surely we can all agree that it does not require state officials to favor more painful methods of execution over less painful ones.”
The Promise of Justice Initiative (PJI), which filed the initial lawsuit challenging Hoffman’s execution, said the Fifth Circuit opinion flies in the face of decency and pointed to Alabama’s past experiences with nitrogen gassing.
“Every time Alabama gassed a person to death, the person writhed violently and convulsed in their last moments on Earth,” PJI executive director Samantha Kennedy said in a statement. “We will now turn to the United States Supreme Court to stop the execution of Mr. Hoffman until this method of killing can be adequately explored.”