STATE OF LOUISIANA v. JESSIE HOFFMAN (2025)

I respectfully dissent from the court's decision to deny exercise of its supervisory jurisdiction to review this matter and to issue a stay. As argued by counsel for Mr. Hoffman, the Department of Corrections should not carry out executions in a hurry and without careful consideration of the constitutionality and appropriateness of this most extreme and final punishment. The announcement of a new nitrogen gas protocol, which was not disclosed to Mr. Hoffman until February 28, 2025, to execute him on March 18, 2025, gives rise to substantial claims of constitutional violations in his case. He cannot litigate these claims, however, when he is dead.

As Justice Griffin noted in State v. Hoffman, 25-0324, 2025 WL 825756 (Griffin, J., dissenting) (citing State v. Perry, 610 So. 2d 746 (La. 1992)), Louisiana's protection against inhumane treatment under La. Const. art. 1, § 20 is broader than the Eighth and Fourteenth Amendments of the United States Constitution. In State v. Sepulvado, 367 So. 2d 762, 764 (La. 1979), this Court explained,

The Louisiana Constitution of 1921 merely prohibited “cruel and unusual punishment.” Article I, Section 12. In a deliberate change of wording, the new Louisiana Constitution of 1974 broadened the constitutional provision (and the duty of our courts in review of sentences) by providing, Article I, Section 20: “No law shall subject any person ․ to cruel, Excessive, or unusual punishment.”

The deliberate inclusion of a prohibition against “excessive” as well as “cruel and unusual” punishment adds an additional constitutional dimension to judicial imposition and review of sentences. By it, the excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court. See La. Const. art. 5, Section 5(C).

In addition to deliberate change in the constitutional wording, the constitutional intent reflected by the additional constitutional prohibition against “excessive” punishments may also be deduced from the historical jurisprudential gloss given to the former constitutional prohibition against punishments merely “cruel and unusual”, as well as from the legislative history within the constitutional convention of the adoption of Article 1, Section 20, which is entitled “Right to Humane Treatment.”

Later, this Court further explained,

The enhancement of the safeguards in several particulars and the convention history in general indicate that Article I, § 20 affords no less, and in some respects more, protection than that available to individuals under the Cruel and Unusual Punishments Clause of the Eighth Amendment at the time of the adoption of our state constitution. Accordingly, this court has considered the United States Supreme Court opinions and other jurisprudence preexisting the adoption of the 1974 Louisiana Constitution as the threshold, but not the determinant, of the right to humane treatment declared by Art. I, § 20.

Perry, 610 So. 2d at 762 (citing Sepulvado, 367 So. 2d at 746-66). Moreover, contrary to the Eighth Amendment, Section 20 explicitly bars torture as well as sentences that are cruel or unusual, as opposed to the Eighth Amendment's requirement that a sentence be both cruel and unusual to be barred.

This Court has never found a method of execution to violate a prisoner's right to humane treatment, nor has the United States Supreme Court “invalidated a State's chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Baze v. Rees, 553 U.S. 35, 48, 128 S.Ct. 1520, 1530, 170 L.Ed.2d 420 (2008). However, that does not mean that Hoffman is not entitled to an evidentiary hearing to address this important constitutional issue.

Furthermore, Hoffman has alleged that the recent amendment of La. R.S. 15:569 permitting execution by nitrogen hypoxia violates the prohibition of ex post facto punishment. Article I, § 10 of the U.S. Constitution and La. Const. art. I, § 23 prohibit the ex post facto application of laws. This Court “has consistently held that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer.” Massey v. Louisiana Dep't of Pub. Safety & Corr., 13-2789, p. 4 (La. 10/15/14), 149 So. 3d 780, 783. Courts have held that changing the method of execution does not constitute a prohibited ex post facto punishment, provided the “evidence showed the new method to be more humane ․” Weaver v. Graham, 450 U.S. 24, 32 n.17, 101 S.Ct. 960, 966, 67 L.Ed.2d 17 (1981). In Malloy v. South Carolina, the United States Supreme Court denied a defendant's ex post facto argument concluding, “electrocution is less painful and more humane than hanging.” 237 U.S. 180, 185, 35 S.Ct. 507, 509, 59 L.Ed. 905 (1915). This Court has applied the same analysis in a similar case addressing the Louisiana law enacting execution by electrocution. In State ex rel. Pierre v. Jones, 200 La. 808, 823, 9 So. 2d 42 (1942), this Court found the new law providing for death by electrocution,

does not change the punishment in capital cases, the infliction of the death penalty. It merely provides a different method or mode of executing that penalty by substituting ‘electrocution’ for ‘hanging’, and, as the infliction of death by electrocution is more humane and less painful than by hanging, the retrospective effect of the statute, i.e., its provisions being applicable to crimes committed prior to its effective date, does not make it an ex post facto law within the meaning of the provisions of Article IV, § 15 of the Constitution of Louisiana of 1921 and Article I, § 10 of the Constitution of the United States.

Thus, if a defendant shows that a new method of execution is more painful or less humane than the method employed at the time of the offense, the punishment violates the ex post facto clause of Louisiana's Constitution.

Hence, contrary to the trial court's finding, Hoffman has raised a cognizable claim for post-conviction relief under La. C. Cr. P. art. 930.3(6) when he argues nitrogen hypoxia violates the ex post facto clause because it is a more painful, less humane method of execution than lethal injection—the method in place at the time of his offense. As such, he is likewise entitled to an evidentiary hearing on this constitutional issue.

Accordingly, I would grant a stay and grant the writ application in order to remand this matter to the trial court for an evidentiary hearing and consideration of these important constitutional issues.

GUIDRY, J., dissents and assigns reasons.