A federal judge on Tuesday temporarily blocked Louisiana’s first execution in 15 years after lawyers for the condemned man argued a new method known as nitrogen hypoxia would violate his constitutional rights.
The inmate, Jessie Hoffman Jr., 46, said the use of a face mask to deliver only nitrogen gas, depriving him of oxygen, “substantially burdens” his ability to engage in his Buddhist breathing practices and create “superadded pain and suffering.”
Hoffman’s execution, scheduled for March 18, was set to be the first time Louisiana would put a person to death using nitrogen hypoxia.
Louisiana Middle District Chief Judge Shelly Dick ruled in partial favor of Hoffman in his request, writing that it is in the “best interests of the public” to be able to examine the state’s “newly proposed method of execution on a fully developed record.” She said she was particularly troubled that the state only released a redacted protocol to the public until the day before the preliminary injunction hearing on Friday.
“The public has paramount interest in a legal process that enables thoughtful and well-informed deliberations, particularly when the ultimate fundamental right, the right to life, is placed in the government’s hands,” she wrote.
She said Hoffman cannot be executed until his claims are “decided after a trial on the merits and a final judgment is issued.”
Neither the office of state Attorney General Liz Murrill nor the state Department of Public Safety and Corrections immediately responded to a request for comment, but state officials immediately appealed the case to the U.S. Court of Appeals for the Fifth Circuit.
Hoffman’s planned execution was set for a particularly busy one-week span of executions in America, with five states, including Louisiana, expected to carry out punishment.
In 1996, Hoffman was 18 when prosecutors say he abducted his victim, Mary Elliott, at gunpoint from a New Orleans parking garage on the night before Thanksgiving Day, forced her to withdraw $200 from an ATM, then raped and shot her to death.
State corrections Secretary Gary Westcott selected nitrogen hypoxia as Hoffman’s method of execution. Last year, the state legalized the use of nitrogen gas in addition to the more widely used method of lethal injection, but officials have had trouble procuring the necessary lethal injection drugs since its last execution in 2010. There are more than 50 people on Louisiana’s death row.
Another state, Alabama, has had similar trouble sourcing lethal injection drugs, and last year, became the first state to administer nitrogen hypoxia. It has executed four prisoners using the method, including one last month.
Louisiana corrections officials said they traveled to Alabama to study how its nitrogen system functions. Louisiana subsequently built a nitrogen hypoxia facility at the Louisiana State Penitentiary in Angola consisting of an execution chamber, a valve and storage room, and an observation area.
The state said in a court filing Sunday that “breathing in the mask is ‘very comfortabl[e],'” and “the mask is very similar, if not identical, to the one used in Alabama’s system.”
During a hearing last week seeking a preliminary injunction, Hoffman testified that he began practicing Buddhism in 2002 after the death of his grandmother. He said he believed having a mask on his face would only exacerbate his trauma and claustrophobia stemming from being locked in a closet by his brother as a young child.
He said his breathing recently helped him to remain calm when he was moved to a smaller cell in anticipation of his execution, and the surroundings “triggered anxiety of small spaces.”
Dr. Philip Bickler, the chief of neuro-anesthesia at the University of California, San Francisco, testified that the sensation nitrogen hypoxia provides is “very similar to drowning.”
“I think for someone like Mr. Hoffman, nitrogen asphyxiation would be a particularly horrible method, a really inhumane choice for an individual who has a history of PTSD,” Bickler said.
The state’s own experts rejected the idea that death by nitrogen hypoxia would adhere Hoffman to unconstitutional pain and that the “only material dispute” is how long it may take for him to become unconscious as he begins to breathe in nitrogen.
At the hearing, the state also cross-examined a Zen Buddhist priest testifying for Hoffman, and noted that while she “maintained that air is important to the practice, she was unable to identify any doctrine within the Tibetan Buddhist tradition that required oxygen in particular.”
Critics of nitrogen hypoxia have included the Louisiana group Jews Against Gassing, whose members have said the method “echoes” the Holocaust.
Medical experts have also warned that if the procedure is not done properly, even a small amount of oxygen getting into the mask could lead to slow asphyxiation and prolong the time it would take to die.
In previous nitrogen hypoxia executions, media witnesses have described inmates appearing to remain conscious longer than expected, and thrashing and shaking on the gurney.
Last month, Gov. Jeff Landry said Louisiana would remain undeterred.
“We will carry out these sentences and justice will be dispensed,” he said.
In opposing nitrogen hypoxia, Hoffman’s lawyers offered other methods they believed would reduce his “risk of harm,” including firing squad. The option is not currently legal in Louisiana.
Last week, South Carolina executed its first inmate by firing squad after the prisoner, Brad Sigmon, chose not to die by alternative methods lethal injection or electrocution.
