NOTE: After I wrote this column below, a Fifth Circuit appellate panel voted 2-1 to overturn the injunction described below, thus putting the execution back on schedule for Tuesday evening, March 18. As I write this note, desperate appeals are pending both in Louisiana courts and in the U.S. Supreme Court to reinstate the injunction and delay the execution. If I had time, I would take apart the appeals court decision, which is wrong on the facts and wrong on the law. As it is, my original column, below, will have to do. — Quin
(March 12)
Federal district judge Shelly Dick was absolutely right on March 11 to delay the intended March 18 execution of convicted murderer Jessie Hoffman Jr.
Hoffman has made a compelling argument that courts, upon full hearing, are likely to decide that execution by the administration of pure nitrogen gas is a “cruel and unusual punishment” that is banned by the Eighth Amendment of the U.S. Constitution. He makes an even more compelling argument that he has not had adequate time to present his Eighth Amendment claims for full consideration.
And Hoffman makes an irrefutable argument that he would have suffered “irreparable harm” if the execution had been effectuated before he could secure a full hearing on the merits of his Eighth Amendment claims. Legally, the presence of irreparable harm is (quoting multiple precedents) “the single most important prerequisite for the issuance of a preliminary injunction” of the sort Judge Dick granted. Obviously, death is an irreparable harm.
Before considering this case any further, let’s be clear: This is not, repeat not, an argument about whether the death penalty itself is reasonable, moral or constitutional. This is a case about how to carry out the death penalty in a reasonable and constitutional, meaning non-torturous, way. It is entirely possible to approve of the death penalty in theory while insisting that certain methods should be off-limits because of the extreme pain or superabundant terror they inflict.
Despite the breezy assurances by Louisiana state officials that death-by-pure-nitrogen is adequately humane, considerable evidence exists to the contrary. Start with the fact that almost all veterinary scientists consider nitrogen gas too cruel even for animal euthanasia, and indeed Louisiana itself does not allow veterinarians to use that method. Then consider that as Louisiana copied its protocols for conducting the execution, it consulted no actual medical experts….. [The full column is here.]
