STATE OF LOUISIANA v. JESSIE HOFFMAN (2025)

Stay denied. Writ application denied.

CRC

JLW

JDH

WJC

JBM

Supreme Court of Louisiana March 18, 2025

The United States Supreme Court has made clear that capital punishment is constitutional. See Gregg v. Georgia, 428 U.S. 153, 177-78, 96 S. Ct. 2909 (1976) (“For nearly two centuries, this Court, repeatedly and often expressly, has recognized that capital punishment is not invalid per se.”).¹ “It necessarily follows that there must be a means of carrying it out. Some risk of pain is inherent in any method of execution – no matter how humane – if only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions.” Baze v. Rees, 553 U.S. 35, 47 (2008).

Later, in Glossip v. Gross, 576 U.S. 863, 869 (2015), the Court observed that “while most humans wish to die a painless death, many do not have that good fortune,” making the following astute observation:

Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.

Glossip v. Gross, 576 U.S. 863, 869 (2015). See also, Bucklew, 587 U.S. at 132-33 (“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.”).

The main target of the defendant's latest flurry of pleadings is the manner of execution – nitrogen hypoxia – which defendant maintains violates Article I, § 20 of the Louisiana Constitution and the Eighth Amendment to the United States Constitution, both of which bar cruel or unusual punishment.² Importantly, the courts which have considered this argument have repeatedly declined to declare execution by nitrogen hypoxia unconstitutional. See Grayson v. Comm'r, Alabama Dep't of Corr., 121 F. 4th 894 (11th Cir.), cert. denied sub nom. Grayson v. Hamm, 145 S.Ct. 586 (2024); Smith v. Alabama, 144 S.Ct. 715 (2024); Hoffman v. Westcott, --- F.4th ---, 2025 WL 816734 (5th Cir. 3/14/2025) (slip opinion). Therefore, the only thing the defendant is really attempting to gain in this Court is the very thing he denied his victim – more time.

Defendant also asserts that this particular method of execution violates his religious freedom rights as a Buddhist. He argues in his filings that “his ability to practice his faith at the moment he is put to death is thus substantially burdened under the Nitrogen Gassing Protocol.” I find no merit to this claim. Defendant's arguments, taken to their logical extreme, would result in the abolition of the death penalty for anyone whose religious beliefs were expansive enough to prohibit any form of execution as being in contravention of his theological and moral tenants.

While over the years, the methods of execution have changed, the United States Supreme Court “has never invalidated a State's chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Glossip, 576 U.S. at 869, quoting Baze, 553 U.S. at 48. Both the United States Supreme Court and this Court have on more than one occasion found execution by electric chair to be constitutional and not violative of either the Eighth Amendment or Article I, § 20. See, e.g., State of La. ex rel. Francis v. Resweber, 329 U.S. 459 (1947); State v. Crook, 221 So. 2d 473 (La. 1969); In re Kemmler, 136 U.S. 436 (1890). It is clear to me that if execution by electric chair is constitutional, then execution by nitrogen hypoxia is also constitutional. Certainly, this method of execution is more humane than that which the defendant inflicted upon his victim.

As to the defendant's arguments that a change in the method of execution violates the prohibition on ex post facto punishment, such is not the case. First, defendant has already unsuccessfully raised this issue in the Middle District Court of Louisiana. See Hoffman v. Westcott, CV 25-169-SDD-SDJ, 2025 WL 763945 (M.D. La. Mar. 11, 2025), at *13. He has provided no new evidence or legal theory for why this Court should not hold the same. Second, the United States Supreme Court, and likewise, this Court, have previously found such an argument without merit in determining that changing the method of execution does not constitute a prohibited ex post facto punishment. See Weaver v. Graham, 450 U.S. 24, 32 n. 17, 101 S.Ct. 960, 966 (1981); State ex rel. Pierre v. Jones, 823, 9 So. 2d 42 (1942). Additionally, I find persuasive the following language from State ex rel. Pierre:

The constitutional inhibition of ex post facto laws was intended to secure substantial personal rights against arbitrary and oppressive legislative action, and not to obstruct mere alteration in conditions deemed necessary for the orderly infliction of humane punishment.

Id., 9 So. 2d at 44.

Furthermore, the exclusive grounds for post-conviction relief are set forth in La. C.Cr. P. art. 930.3. Article 930.3 does not recognize the claim that a sentence violates a defendant's right to humane treatment under La. Const. Art. I, § 20. To the contrary, there are limited grounds upon which post-conviction relief made be granted.³

For these reasons, I concur in the denial of the defendant's writ application.

Whether execution by nitrogen hypoxia violates La. Const. Art. I § 20, remains an open question, containing two unanswered parts: (1) the impact of the disjunctive nature of § 20,¹ and (2) how courts are to determine the legality of methods of execution under § 20.² I therefore respectfully dissent and would grant and remand to the trial court for a full evidentiary hearing.³

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.

FOOTNOTES

1.   Since Gregg, the United States Supreme Court has continued to consistently uphold the constitutionality of the death penalty. See, e.g., Bucklew v. Precythe, 587 U.S. 119, 129 (2019) (“The Constitution allows capital punishment.”); Baze v. Rees, 553 U.S. 35 (2008).

2.   The language of Article I, § 20 of the Louisiana Constitution varies slightly from the Eighth Amendment of the United States Constitution. While the former bars “cruel ․ or unusual punishment,” the latter bars “cruel and unusual punishments.”

3.   Those exclusive grounds are as follows: “(1) The conviction was obtained in violation of the constitution of the United States or the state of Louisiana. (2) The court exceeded its jurisdiction. (3) The conviction or sentence subjected him to double jeopardy. (4) The limitations on the institution of prosecution had expired. (5) The statute creating the offense for which he was convicted and sentenced is unconstitutional. (6) The conviction or sentence constitute the ex post facto application of law in violation of the constitution of the United States or the state of Louisiana. (7) The results of DNA testing performed pursuant to an application granted under Article 926.1 proves by clear and convincing evidence that the petitioner is factually innocent of the crime for which he was convicted. (8) The petitioner is determined by clear and convincing evidence to be factually innocent under Article 926.2.” La. C.Cr.P. art. 930.3.

1.   Compare U.S. const. amend. 8 with La. Const. Art. I § 20. Only one reported appellate case in Louisiana has discussed the disjunctive “or” and it did so hastily. Watts v. Phelps, 377 So.2d 1317, 1319 (La. App. 1st Cir. 1979). Many states also use disjunctive language: Ala. Const. art. I, § 15; Ark. Const. art. II, § 9; Cal. Const. art. I, § 17; Haw. Const. art. I, § 12; Kan. Const. Bill of Rights § 9; La. Const. art. I, § 20; Me. Const. art. I, § 9; Mass. Const. pt. 1, art. XXVI; Mich. Const. art. I, § 16; Minn. Const. art. 1, § 5; Miss. Const. art. III, § 28; Nev. Const. art. I, § 6; N.H. Const. pt. 1, art. XXXIII; N.C. Const. art. I, § 27; N.D. Const. art. I, § 11; Okla. Const. art. II, § 9; S.C. Const. art. I, § 15; Tex. Const. art. I, § 13; Wyo. Const. art. I, § 14. Courts in states with disjunctive language, including this Court, construe them more broadly than the federal Eighth Amendment, in at least some respects. See, e.g., Good v. Comm'r of Correction, 629 N.E.2d 1321, 1325 (Mass. 1994), State v. Perry, 610 So. 2d 746, 750 (La. 1992), People v. Bullock, 485 N.W.2d 866, 872 (Mich. 1992). Where a relevant state provision is limited by decisions based on the Eighth Amendment, the constitution states so explicitly. See e.g., Fla. Const. Art. 1 § 17.

2.   This Court has only once passed on the constitutionality of a method of execution, and it did so prior to the adoption of our current constitution and under the Eighth Amendment. State v. Crook, 253 La. 961, 969, 221 So.2d 473, 476 (1969).

3.   Nothing prevents the applicant from filing in the 19th JDC and asking it to address these complex issues of state constitutional law. Regardless, although styled as a post-conviction application, Hoffman's collateral filing (as to his § 20 claim) is properly viewed as a Motion to Correct an Illegal Sentence, under La. C.Cr.P. art. 882, which can be raised at any time. See generally, Smtih v. Cajun Insulation, 392 So.2d 398 402 n. 2 (La. 1980) (“courts should look through the caption of pleadings in order to ascertain their substance and to do substantial justice”).

McCallum, J., additionally concurs and assigns reasons. Griffin, J., would grant and assigns reasons. Guidry, J., dissents and assigns reasons.