Louisiana’s nitrogen gas execution back on for next week, federal appeals court rules

Dick issued a preliminary injunction, allowing time for a full trial on whether death by nitrogen gas amounts to cruel and unusual punishment, which is forbidden under the U.S. Constitution’s Eighth Amendment. Attorneys for the state issued a notice of appeal within minutes of Dick’s ruling.

The Fifth Circuit vacated the preliminary injunction.

“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 appeals court’s ruling states, written by Judge James Ho, an appointee of President Donald Trump.

Dick’s ruling had said that Hoffman’s team had given enough evidence that death by a firing squad could be a more humane way for Hoffman to die.

In an emergency appeal brief, attorneys for the state urged the appeals court to vacate Dick’s ruling. The state of Alabama, the only state to employ nitrogen gassing in a modern-day execution and the template for Louisiana’s plan, submitted an amicus brief in support of Louisiana moving forward with the method.

“The district court’s findings are demonstrably misguided and warrant this Court’s emergency intervention,” attorneys for Louisiana said in their brief, painting Hoffman’s lawsuit as a last-ditch effort to delay justice. They also argued that Dick, an appointee of former President Barack Obama, ignored precedents set by the Supreme Court and the U.S. Eleventh Circuit Court of Appeals.

The state said that Hoffman’s attorneys dragged their feet on a fresh challenge to nitrogen gassing as an execution method.

Ho was joined in his decision to vacate the injunction by Judge Andrew Oldham, another Trump appointee. 

Writing in dissent was Judge Catharina Haynes, an appointee of former President George W. Bush. She argued that the courts should allow more time for Hoffman’s case to be litigated.

She found that Hoffman had little time to challenge his method of execution.

“As the district judge thoroughly discusses, there are issues that need more time to be resolved and decided,” Haynes wrote. “Obviously, that cannot be done once he is dead.”

Final appeal to Supreme Court expected

Hoffman is on death row for the 1996 abduction, rape and murder of Molly Elliott in rural St. Tammany Parish. Elliott’s husband, Andy Elliott, said this week that he was torn about the execution and that while it’s been a struggle to spend so long waiting for a final resolution, Hoffman’s death would not bring him closure.

“This is justice for Mary ‘Molly’ Elliot, her friends, her family, and for Louisiana,” said Attorney General Liz Murrill in a statement Friday night.

Cecelia Kappel, an attorney for Hoffman, said Friday night that his legal team will appeal the decision to the U.S. Supreme Court. The court is not required to take up the matter, but may do so at its discretion.

“The 5th Circuit should have deferred to the district court’s assessment of the extensive evidence presented to it after a 12-hour-long hearing showing that Louisiana’s new execution method is likely to cause Jessie to suffer a prolonged and torturous death,” Kappel said.

Hoffman’s method of execution, nitrogen gas, will prevent him from practicing his Buddhist breathing meditation at the period between life and death, she said.

“I think that is just the cruelest thing about this,” Kappel said.

Kappel said earlier this week that Louisiana was trying to avoid scrutiny and place blame on Hoffman “for the rushed nature of these proceedings even though the State only announced it would use lethal gas for executions and set Jessie’s execution date last month.”

Dick’s decision came after a daylong hearing March 7 at which Hoffman testified, asking that the state find another way to put him to death. His lawyers argued that death by nitrogen gas would be inhumane and leave Hoffman feeling like he was drowning, causing emotional suffering.

They said death by firing squad — which is not currently legal in Louisiana but was used last week to execute a man in South Carolina — would lead to a quicker and less painful death.

In its brief, the state argued that a firing squad would cause a more physically painful death and that nitrogen gas would not be as distressing as the plaintiffs made it out to be. 

What is ‘cruel and unusual punishment?’

It would be a surprise if the U.S. Supreme Court intervened in Hoffman’s case, based on how they have treated arguments about cruel and unusual death in recent years.

In 2019, the conservative-led Supreme Court narrowly rejected a Missouri death row inmate’s argument that his medical condition would lead to a painful and excessively punitive execution by lethal injection.

The court sided with the state in a 5-4 vote, with Justice Neil Gorsuch writing for the conservative majority. They ruled that executions aren’t “cruel and unusual” solely because they are painful.

Attorneys for 51-year-old defendant Russell Bucklew had said that tumors growing in Bucklew’s throat would burst during the execution, causing him to choke for several minutes on his own blood.

“Cruel and unusual” executions are ones that “cruelly super adds pain,” Gorsuch wrote.

“The Eighth Amendment does not guarantee a prisoner a painless death — something that, of course, isn’t guaranteed to many people, including most victims of capital crimes.”

An earlier majority of the high court had agreed to stay Bucklew’s execution, with former Justice Anthony Kennedy joining the more liberal justices.

The 2019 ruling was seen by legal scholars as a signal that the majority-conservative had hardened on capital punishment.

“This Court has yet to hold that a State’s method of execution qualifies as cruel and unusual, and perhaps understandably so,” Gorsuch said.

Missouri authorities executed Bucklew by lethal injection in October 2019, six months after the high court’s ruling.