HAMPTON v. LANDRY 100 (2026)

Writ application denied.

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.

The lower courts and this court erroneously have determined that the plaintiff states no cause of action with respect to his seeking a determination of whether the newly authorized methods of execution (nitrogen hypoxia and electrocution) provided in La. R.S. 15:569, as amended by 2024 La. Acts, No. 5, § 1, would be a violation of the ex post facto clause contained in La. Const. art. I, § 23 as applied to him. At the time the defendant committed the crime for which he was sentenced to death, the sole method of execution provided by Louisiana law was lethal injection. See La. R.S. 15:569 (prior to amendment by 2024 La. Acts, No. 5, § 1). In his petition, the plaintiff provides extensive factual allegations regarding the relative propriety of each of the methods of execution and how the suffering caused by both nitrogen hypoxia and electrocution is more extreme than by lethal injection. As such, any reliance on State ex rel. Pierre v. Jones, 200 La. 808, 9 So. 2d 42, cert. denied, 317 U.S. 633, 63 S.Ct. 64, 87 L.Ed. 510 (1942) or Hoffman v. Westcott, 131 F.4th 332 (5th Cir.), cert. dismissed, ––– U.S. ––––, 145 S.Ct. 1951, 221 L.Ed.2d 680 (2025) to find the plaintiff fails to state a cause of action for his ex post facto claim is misplaced and erroneous.

In Jones, this court recognized that giving retrospective effect to legislation that changes execution to a method that is “more humane and less painful” does not make the law ex post facto within the meaning of the prohibitions found in the state and federal Constitutions. Jones, 200 La. at 823, 9 So. 2d at 46; see U.S. Const. art. I, § 10 and La. Const. art. I, § 23. As I mentioned in my dissent in State v. Hoffman, 25-00327, p. 3 (La. 3/18/25), 402 So. 3d 1214, 1218 (Guidry, J., dissenting), it therefore stands that “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.”

Further, in Hoffman, 131 F.4th at 336, the United States Fifth Circuit Court of Appeals pointed out and relied on the defendant's concession that nitrogen hypoxia “is less painful than other established methods of execution” to deny the defendant's ex post facto claim,¹ but the plaintiff herein makes no such similar concession. Rather, he has pled that the use of nitrogen hypoxia ² and electrocution ³ would substantially increase his suffering and pain as compared to the sole method of execution that was authorized at the time he committed his capital offense – lethal injection.

Thus, to the extent the plaintiff has sufficiently alleged that the use of nitrogen hypoxia or electrocution as a method of execution is more painful and less humane than lethal injection, the plaintiff has stated a cause of action, as the limited function of the objection is to determine whether the law provides a remedy to anyone assuming that the facts plead in the petition will be proven at trial. All doubts should be resolved in the plaintiff's favor. Farmco, Inc. v. W. Baton Rouge Parish Governing Council, 01-1086 (La. 6/15/01), 789 So. 2d 568, 569 (citing 1 Frank L. Maraist & Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 6.7(2)(1999)). The district court's ruling holding that the plaintiff failed to state a cause of action is clearly an erroneous application of the objection of no cause of action and grossly departs from proper judicial proceedings, warranting the grant of the plaintiff's writ application. See La. S. Ct. R. X, § 1(A)(4) and (5).

Similarly, as the plaintiff sufficiently alleges a claim regarding the ex post facto application of the amended version of the statute, the determination that the plaintiff fails to state a cause of action with respect to retroactive application of the amended version La. R.S. 15:569 is likewise in error. The legislature did not expressly provide for retroactive application of the amendments to the statute. See La. R.S. 1:2. And in the absence of the legislature so providing, La. C.C. art. 6, plainly prohibits the retroactive application of the amended statute, which clearly provides for substantive changes in how executions may be administered in this state.

In addition to erroneously sustaining the objection of no cause of action for the plaintiff's ex post facto and non-retroactivity claims, the district court also erroneously sustained the objection with respect to the plaintiff's claims that La. R.S. 15:569 improperly delegates legislative authority to the Secretary of the Department of Public Safety and Corrections (DPSC) without providing sufficient parameters for the exercise of the authority granted. See La. Const. art. II, §§ 1 and 2. While the legislative branch has the authority to delegate to administrative boards and agencies the power to ascertain and determine, within prescribed limits, the facts upon which laws are to be applied and enforced, such delegation cannot allow the exercise of primary and independent discretion. State v. Taylor, 479 So. 2d 339, 341 (La.1985). A delegation of authority to an administrative agency is constitutionally valid if the enabling statute (1) contains a clear expression of legislative policy; (2) prescribes sufficient standards to guide the agency in the execution of that policy; and (3) is accompanied by adequate procedural safeguards to protect against abuse of discretion by the agency. State v. Alfonso, 99-1546, p. 8 (La. 11/23/99), 753 So. 2d 156, 161.

The unfettered discretion granted the Secretary of the DPSC to determine what method to use and how it is to be administered strips the delegation of authority of being characterized as merely administrative. As amended, La. R.S. 15:569 does not provide any guidance regarding: which of the execution methods may be used; what substances may be used (with respect to lethal injections); or how much nitrogen gas, electricity, or substances may be used in employing any of the three authorized methods. As asserted by the plaintiff in paragraph 146 of his petition, “[w]ithout basic guidelines and safeguards, the Secretary has complete discretion to select substances or methods that would result in ‘torture or a lingering death,’ in violation of the Louisiana Constitution.” In paragraph 150, the plaintiff similarly notes:

Any substance 4 may be used as long as it is injected intravenously, nitrogen gas may be administered without guiding standards, and condemned inmates may be electrocuted using whatever voltage and duration as long as the electric currents cause the inmate to die. In short, nothing in the statute prevents the Secretary from employing methods that cause torture or lingering death.

In his petition, the plaintiff further expresses sincere concerns that his medical condition could delay or negate the effectiveness of the authorized methods of execution.⁵

Additionally, the amended version of La. R.S. 15:569 contains no clear expression of the legislature's purpose for granting the Secretary of the DPSC unfettered discretion in the selection and administration of execution among the three authorized methods. Moreover, regarding the selection of an executioner, absent the Secretary serving as executioner, the plaintiff points out that La. R.S. 15:568 and 570(A)(4) likewise provide no criteria, guidelines, standards, or even definition of who a “competent person” would be to serve in that role.

And for the same reasons, I find the plaintiff sufficiently alleges that the current statutory scheme for executions is unconstitutionally vague in violation of his right to due process. “It is well recognized that a rule or law, if ambiguous or vague, may fall short of the constitutional requirement for due process.” Dumez v. Louisiana High School Athletic Association, 334 So. 2d 494, 502 (La. App. 1st Cir.), writ refused, 337 So. 2d 225 (La.1976). As the plaintiff points out in paragraph 155 of the petition, this court has held that “[a] statute which fails to establish minimal, objective guidelines sufficiently distinct to administer the law impartially and in accord with the legislative will cannot withstand constitutional scrutiny.” State v. David, 468 So. 2d 1126, 1128 (La. 1984). I find that the plaintiff correctly asserts that many of the same reasons whereby he alleges the legislature unlawfully delegated unfettered discretion to the Secretary of the DPSC to conduct the authorized methods of execution support his due process challenge of the statutory scheme.

Accordingly, for the foregoing reasons, I find the objection of no cause of action was improperly and erroneously sustained as to the identified claims, and I therefore would grant the writ application so holding.

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, 536 P.3d 445 (2023). See also, Brown v. Vail, 169 Wash. 2d 318, 237 P.3d 263 (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.

1.   The Court of Appeals for the Eleventh Circuit observed that the Fifth Circuit in Hoffman had noted that “the district court heard expert testimony from both parties that nitrogen hypoxia is painless” and that “ ‘experts for both parties agreed that death by firing squad’—Mr. Hoffman's proposed alternative means of execution—would ‘be more painful than execution by nitrogen hypoxia.’ ” Lee v. Commissioner, Alabama Department of Correction , 26-11864, 2026 WL 1651147, at *7 (11th Cir. June 8, 2026) (quoting Hoffman, 131 F.4th at 335).

2.   The plaintiff expressly alleges that execution by nitrogen gas is more painful and less human in paragraph 129 of his petition by noting “[t]o be asphyxiated by nitrogen gas causes conscious terror and excruciating sensations of being suffocated” and further points out that Louisiana law prohibits “gassing as a method of euthanasia for cats and dogs” in paragraph 133 of the petition. See La. R.S. 3:2465(C)(2). In his petition, the plaintiff provides pages of factual allegations, jurisprudence, and news accounts of the extreme and excessive suffering caused by the administration of nitrogen hypoxia as the execution method in Alabama. See, e.g., Lee, 26-11864, 2026 WL 1651147, at *2 (wherein the Eleventh Circuit found that the defendant therein had shown that the nitrogen hypoxia protocol “presents a ‘substantial risk of serious harm’—severe pain over and above death itself” sufficient to find that the protocol violates the protections of the Eighth Amendment of the United States Constitution) and Marty Roney, Nitrogen Gas Execution: Kenneth Smith Convulses for Four Minutes in Alabama Death Chamber, Montgomery Advertiser (Jan. 25, 2024), www.montgomeryadvertiser.com/story/news/local /alabama/2024/01/25/four-minutes-of-convulsions-kenneth-smith-executed-with-nitrogen-gas/72358038007/.

3.   The plaintiff expressly alleges that electrocution is more painful and less humane in paragraph 127 of his petition by, in part, quoting jurisprudence in which electrocution is described as “a ‘high voltage [of electricity] [that] causes intolerable pain sensations by direct excitation of peripheral sensory nerves.’․ The condemned inmate remains conscious as his flesh is burned away.” Likewise, in his petition, the plaintiff provides pages of factual allegations, legislative history, jurisprudence, and news accounts regarding the extreme and excessive suffering caused by execution by electrocution. See, e.g., Baze v. Rees, 553 U.S. 35, 62, 128 S.Ct. 1520, 1538, 170 L.Ed.2d 420 (2008) (“The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today's consensus on lethal injection.”); Walt Philbin, Killer Fought Off Tears Sitting in Electric Chair, Times Picayune, at B8 (July 23, 1991).

4.   For instance, the plaintiff alleges in paragraph 146 of the petition that the secretary could choose to use lethal quantities of “sulfuric acid, gasoline, or embalming fluid” with no regard for the efficacy of using such substances for executions.

5.   In paragraphs 113, 135, 174, and 184 of his petition, the plaintiff alleges that he “suffers from a number of medical conditions, including obesity, that would make death by lethal injection or nitrogen gas more difficult to administer.” As he explains, his medical conditions could make it more difficult to properly fit a respirator mask, increasing the likelihood that oxygen can leak into the mask and prolong death, or for lethal injection, it could be more difficult to locate a vein and to properly insert an IV. In paragraph 110 of his petition, the plaintiff refers to news accounts where IV problems profoundly extended the condemned persons suffering before death or resulted in the execution being unsuccessful.

Weimer, C.J., would grant and docket. Griffin, J., concurs in the denial and assigns reasons. Guidry, J., would grant and assigns reasons.