BOBBY HAMPTON v. GOVERNOR JEFF LANDRY LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS SECRETARY GARY WESTCOTT ATTORNEY GENERAL ELIZABETH LIZ MURRILL DARREL VANNOY AND JOHN DOES 100 (2026)

As noted by the State in its opposition to the writ application, we are not asked to decide the open question of whether any method of execution violates Article I § 20 of the Louisiana Constitution under the State's current execution protocol.¹ State v. Hoffman, 25-0327 (La. 3/18/25), 402 So. 3d 1214, 1216 (Griffin, J., would grant and assigns reasons), and State v. Hoffman, 25-0324 (La. 3/16/25), 402 So. 3d 481, 483 (Griffin, J., dissents and assigns reasons). However, I agree with the denial in this matter because Mr. Hampton's claims about non-delegation are premature.² Further, our framers made clear that Article I § 23 tends to apply only to laws that make an act a crime after the fact.³ Thus, it likely does not apply in situations where the punishment for a crime is only minimally changed.

FOOTNOTES

1.   Article I § 20’s terminology is different and broader than the Federal Eighth Amendment, and this Court has long interpreted it as such. State v. Perry, 610 So. 2d 746, 761-62 (La. 1992). This conforms to the original intent of our framers who added the word “excessive” into the clause to increase its scope. Many of our framers wrote on this provision and agreed with the sentiment. Id. (collecting sources). The disjunctive nature of § 20 also shows that it was intended to be read more broadly than the Eighth Amendment. Numerous other states have similar disjunctive clauses that have been read more broadly than the federal counterpart. See Hoffman, 402 So. 3d at 1216 n. 1 (Griffin, J. would grant and assigns reasons). The framers likewise listed acts which they thought were unconstitutional under this provision. Throughout the discussion on Section 20 they mentioned they were adding in some of the other terms to prevent acts similar to those done by the Germans in WWII. See e.g., Records of the Louisiana Constitutional Convention of 1973, Transcript Records, volume VII, page 1189, September 8, 1973, 44th Day of the Proceedings (discussing concerns about German practices); Id. at 1190 (discussing addition of “excessive”), Id. (Discussions between Delegates Willis and Weiss). If, after remand, the lower court should find the execution protocol unconstitutional, the Court would then be well positioned to address the issue.

2.   When a case that is not premature arrives, the Court should grant and docket the matter. On his non-delegation argument, Mr. Hampton cites Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844 (2012). However, the majority of courts have upheld statutes that allow for an administrative agency to decide the “granular details of formulating an execution protocol.” Floyd v. Dep't of Corr., 139 Nev. 335, 340 (2023). See also, Brown v. Vail, 169 Wash. 2d 318 (2010); Sims v. Kernan, 30 Cal. App. 5th 105, 115, 241 Cal. Rptr. 3d 300, 309 (2018) (rejecting Hobbs by name); State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011); Cook v. State, 230 Ariz. 185, 188, 281 P.3d 1053, 1056 (Ct. App. 2012); Sims v. State, 754 So. 2d 657, 668 (Fla. 2000); State v. Deputy, 644 A.2d 411, 420 (Del.Super.Ct.1994) (rejecting delegation argument under state's cruel and unusual punishment clause); State v. Osborn, 102 Idaho 405, 631 P.2d 187 (1981); Ex parte Granviel, 561 S.W.2d 503 (Tex.Crim.App.1978). This Court has relied on similar overwhelming jurisprudence from mother states before on matters relating to the separation of powers. Fisher v. Harter, 2024-00359 (La. 10/25/24), 395 So. 3d 806. Justice Piper D. Griffin & Dr. Derek Warden, Interpreting the Louisiana Constitution, 72 Loy. L. Rev. 193, 205 - 206 (2026) (discussing use of decisions from other states). However, there may be reasons to reject the majority approach and adopt the minority view that are not apparent at this time.

3.   Records of the Louisiana Constitutional Convention of 1973, Transcript Records, volume VII, page 1223, September 13, 1973, 46th Day of the Proceedings (Statement by Delegate Roy noting “An ex post facto law is a very common latin term which means that you may not pass a law that makes something a crime or something punishable that you had already done that was not a crime at the time you did the act.”) Upon Delegate Roy's assurances, this provision was adopted unanimously 110 – 0.It appears to be an open question whether § 23 would apply where the change in punishment is so different that one could assume the defendant would have changed his conduct had he known of the new punishment at the time he committed the crime. But Mr. Hampton does not make that argument here.

GRIFFIN, J. concurs in the denial and assigns reasons.