Appeals court says Louisiana can carry out the state’s first nitrogen gas execution next week

Louisiana's first execution using nitrogen gas is set to move forward as planned next week after a federal appeals court on Friday vacated a preliminary injunction granted by a lower judge.

With a March 18 date hastily nearing, attorneys for Jessie Hoffman Jr. told The Associated Press that they plan on immediately taking the legal matter to the U.S. Supreme Court in the hopes of halting the execution.

State officials, including Attorney General Liz Murrill, applauded the appeals court's decision saying Louisiana is long overdue in delivering justice promised to the families of victims.

Hoffman’s attorney, Cecelia Kappel, denounced the decision, saying the “new execution method is likely to cause Jessie to suffer psychological terror and a torturous death.”

Under the state's new procedure, Hoffman will be strapped to a gurney and forced to breathe pure nitrogen gas through a full-face respirator mask. The protocol is nearly identical to that of Alabama, the first state to use nitrogen hypoxia as a method of execution and has carried out four such executions.

If the death penalty is carried out then Hoffman, who was convicted of the 1996 murder of Mary Elliott in New Orleans, would be Louisiana’s first execution in 15 years.

Hoffman's attorneys say the new execution method is a violation of the Constitution, describing it as cruel and unusual punishment. During a hearing last week, multiple medical experts testified that they believe the method to be torturous, with one expert comparing the method to causing the same sensation and emotional terror as drowning.

Hoffman's attorneys pointed to nitrogen hypoxia executions in Alabama, where inmates appeared to shake and gasp to varying degrees during their executions, according to media witnesses. Alabama officials said the shaking and gasping are involuntary movements associated with oxygen deprivation.

Attorneys for Louisiana remain adamant that nitrogen hypoxia is seemingly painless.

Following last week's hearing, U.S. District Judge Shelly Dick issued a preliminary injunction stopping the state from moving forward with the execution. In her ruling, Dick said the court is tasked with answering the ultimate question of whether or not the execution method of nitrogen hypoxia is a cruel and unusual punishment, which would be a violation of the Eighth Amendment. She went on to say that it would not be a matter of whether Hoffman would be executed, but rather how.

During the hearing, Hoffman requested that he be put to death using a “humane” method, specifically asking for death by a firing squad or a drug cocktail typically used for physician-assisted death. The only approved execution methods in Louisiana are nitrogen hypoxia, lethal injection and electrocution.

On Friday the 5th U.S. Circuit Court of Appeals in New Orleans said the state could move forward with the execution using nitrogen gas. Judge James Ho and Judge Andrew Oldham, both appointees of President Donald Trump, ruled to vacate the lower court's preliminary injunction.

Among the reasons for their decision, the judges pointed to the state's argument that Hoffman's requested execution method of a firing squad would be “more painful” than nitrogen hypoxia.

“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 court wrote.

Judge Catharina Haynes, an appointee of former President George W. Bush, wrote a dissent saying the courts need more time for litigation.

“Obviously that cannot be done once he (Hoffman) is dead,” she wrote.

If the execution occurs as scheduled, Louisiana would be the second state to use nitrogen hypoxia.

Alabama first used the method of nitrogen hypoxia to put Kenneth Eugene Smith to death last year, marking the first time a new method had been used in the U.S. since lethal injection was introduced in 1982.

Over recent decades, the number of executions nationally has declined sharply amid legal battles, a shortage of lethal injection drugs and waning public support for capital punishment. That has led a majority of states to either abolish or pause carrying out the death penalty.

Last year, Louisiana lawmakers expanded the state's approved methods to carry out the death penalty to include nitrogen hypoxia, sparking a renewed push to resume executions in the state.

Murrill told the AP in February that she expects at least four people will be executed this year. There are 56 people on Louisiana’s death row.