Death row inmate petitions Supreme Court to stop ‘cruel and unusual’ nitrogen gas execution

The first prisoner set to be put to death through nitrogen gas under Louisiana’s new protocol asked the Supreme Court Monday to halt his execution and to weigh his legal challenge.

Jessie Hoffman petitioned the justices to halt his execution scheduled for Tuesday between 6 p.m. and 9 p.m. and to grant his legal battle review as he contests the state’s new death penalty method.

He argues the state’s new mode of execution — he would be the first Louisiana prisoner executed under the protocol — violates the 8th Amendment, which bans cruel and unusual punishment.

“The Eighth Amendment forbids forms of execution that intensify a death sentence with ‘superaddition[s] of terror, pain, or disgrace,’” his filing read.

The request was presented to Justice Samuel A. Alito Jr., who sees appeals out of the 5th U.S. Circuit Court of Appeals, which includes Texas, Mississippi and Louisiana.

The 5th Circuit sided against Hoffman, but the district court had initially issued an injunction halting the execution. Because that injunction was lifted, Hoffman appealed to the high court.

The state of Louisiana announced its new protocol last month to put prisoners to death through nitrogen hypoxia, which is the forced inhalation of pure nitrogen.

The state’s solicitor general told the high court Monday that Hoffman’s last minute request is a delay strategy and the issue he raises could have been litigated months ago. The filing also said the use of the nitrogen gas is painless.

“Plaintiff’s strategy to jam this Court less than 48 hours away from his execution is inexplicable. The Fifth Circuit’s decision vacating the district court’s injunction against his execution came out on Friday. Yet he did not touch this Court’s docket until midnight on Sunday. Not only that, but his questions presented today also could have been litigated over eight months ago,” the state’s filing read.

Alabama inmate Kenneth Eugene Smith became the first prisoner executed in the U.S. using nitrogen gas in January. Eyewitnesses said he convulsed in seizure-like movements for minutes before he was pronounced dead.

Hoffman was convicted of the 1996 rape and murder of Mary “Molly” Elliot.

Louisiana changed its mode of execution from lethal injection, which it last used in 2010, because of difficulties procuring the necessary drugs — difficulties some blame on pharmaceutical companies bowing to pressure to stop making the medications available for lethal usage.