Facing imminent execution by lethal gas earlier this week, Jessie Hoffman Jr. — a Louisiana man convicted of abducting, raping and murdering a 28-year-old woman in 1996 — went to court with a request: Please allow me to be shot instead.

In a petition filed with the U.S. Supreme Court on March 16 seeking a stay of his execution by nitrogen hypoxia, a protocol that had yet to be tested in the state, Hoffman requested execution by firing squad as an alternative.

Hoffman's attorneys argued the use of lethal gas, which causes the condemned to suffocate, causes psychological suffering, including terror and mental anguish, in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. They also argued the method violated Hoffman's free exercise of his Buddhist faith under federal law, saying the gas would prevent him from breathing in meditation in the final moments of his life.

Hours before his execution on Tuesday evening, Hoffman's lawyer, Cecelia Kappel, told Law360 she was holding out hope that the execution would be halted.

"Jesse has worked harder than anybody I know in the free world or on death row to better himself every single day. And it is really a travesty that he's the guy that the state is going to kill," she said. "We are going to go down fighting for Jessie."

But as the clock struck 6:31 p.m. inside the execution chamber at the Louisiana State Penitentiary in Angola, the lethal gas began flowing through a fitted, full-face respirator mask into Hoffman's lungs. Hoffman, who had been strapped to a gurney, was pronounced dead 19 minutes later.

Prison officials described the process as "flawless," though some observers said that Hoffman appeared to convulse and shake before losing consciousness, according to accounts of media representatives who were there.

In a brief order issued hours before the execution, the U.S. Supreme Court had denied Hoffman's application for a stay. Justices Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson and Neil Gorsuch — dissented, with Justice Gorsuch writing separately to criticize how lower courts handled Hoffman's religious liberty claim.

Hoffman's execution marked the first time Louisiana used nitrogen gas to kill a prisoner, and the first capital sentence to be carried out in the state following a 15-year pause. Louisiana is the second state to use nitrogen gas in executions.

Louisiana's adoption of the nitrogen gas method is part of a broader shift to alternatives to lethal injections, which have faced intense judicial scrutiny as well as a shortage of raw materials needed to carry them out, resulting in hiatuses in executions in several states. Overall, states with capital punishment have signaled an intention to restart their execution programs, some of which have stalled for years, and for some states this involves shifting to new methods.

In January 2024, Alabama became the first jurisdiction in the world to use nitrogen gas, and has since used it to execute four people. Mississippi and Oklahoma also allow for the method but have yet to use it.

Through a statement to the news media afterward, Kappel called Hoffman's execution "senseless" and said the state embraced the lethal gas protocol and set up execution dates "to prevent careful judicial review."

"We are better than this," Kappel said.

Robin M. Maher, the executive director of the Death Penalty Information Center, told Law360 that media witnesses for all lethal gas executions carried out so far have observed reactions that indicated prisoners experienced extended consciousness, pain and suffering.

"Suffocating prisoners by forcing them to breathe pure nitrogen gas remains an experimental and very troubling method of execution that many have called torture," she said.

Maher said state officials in Louisiana and Alabama have refused to provide details or answer questions about their execution methods. She added that the lack of transparency, which she called "shockingly undemocratic," deepens the concerns surrounding the use of lethal gas.

"State officials say they use nitrogen gas because they cannot secure lethal injection drugs," she said. "But no circumstance could ever justify the use of an execution method that potentially tortures people to death."

Firing Squad Emerging As Additional Method

On March 7, South Carolina executed Brad Sigmon, a man convicted of murder, by firing squad — the first time the state used that method. His execution marked the first time in 15 years such a method was used to kill a prisoner.

Since the Supreme Court reinstated the death penalty across the nation with its 1976 ruling in Gregg v. Georgia after a four-year pause prompted by a constitutional challenge, only a handful of firing squad executions have taken place. From 1977 to 2023, there were three executions by firing squad, all in Utah.

Sigmon's execution signaled an expansion of the use of firing squads, and other states might soon embrace it. Utah, Oklahoma, Mississippi, South Carolina and Idaho currently authorize the firing squad as an execution option.

Utah is the only state that has long allowed firing squads and has used it during the 20th century. Oklahoma and Mississippi added it as a backup method in the 2010s, while South Carolina legalized it in 2021 as a way to resume executions when drugs are unavailable. Idaho adopted it in 2023 for similar reasons.

In South Carolina, the law provides that if lethal injection drugs cannot be obtained, a prisoner must choose between the electric chair and firing squad. Under the law, if a prisoner does not make a choice within 14 days of the scheduled execution, or if lethal injection and the firing squad are not available, electrocution is the default method.

Last year, a group of death row prisoners that included Sigmon alleged in a suit that all those methods violate state constitutional prohibitions. The legal analysis in the litigation focused on whether a person is conscious at the moment the charge flows through the body during an electrocution, and whether a person being shot feels the impact of multiple rifle rounds simultaneously, most notably the fracturing of bones.

In July, the South Carolina Supreme Court found that neither method violated the state constitution's prohibition against "cruel, corporal, or unusual punishment." The court reasoned that providing condemned prisoners with the option to select their method of execution — based on what they find less painful — mitigates constitutional concerns about cruel and unusual punishment.

Legal Standards Applied to a Novel Method

In 2015's Glossip v. Gross, the U.S. Supreme Court held that to prevail on an Eighth Amendment method-of-execution challenge, a prisoner must identify an alternative method that's readily available and implementable in that jurisdiction, and show that the alternative would significantly reduce a substantial risk of severe pain.

The high court reinforced that precedent in 2019 with a ruling in Bucklew v. Precythe, where it held that the Eighth Amendment does not guarantee a painless death, only one that does not involve "superadded" pain or a substantial risk of serious harm.

In that case, death row prisoner Russell Earl Bucklew asked Missouri to kill him through nitrogen hypoxia. Bucklew's request was denied because he failed to show that nitrogen gas was a readily available and established method of execution. He was ultimately killed through lethal injection.

The court's analysis in Glossip and Bucklew shaped the legal framework for Hoffman's challenge, which cited Alabama's recent use of nitrogen gas as evidence of the method's risks.

On Jan. 25, 2024, Alabama became the first U.S. state to kill a death row prisoner, Kenneth Eugene Smith, using nitrogen gas. Smith's execution lasted approximately 28 minutes, and witnesses reported that he "thrashed violently on the gurney" and breathed heavily during the process, according to media accounts.

Alabama has since used the nitrogen gas protocol to execute three more people, most recently on Feb. 6, when carrying out the death sentence of Demetrius Terrence Frazier. In all of those cases, the condemned appeared to be convulsing, quivering or gasping for air — suggesting the method may not be as painless as state officials have claimed.

A 2024 scientific analysis in Experimental Physiology concluded that nitrogen asphyxiation is "inherently inhumane," noting that it causes a surge in breathing, heart rate and convulsions within seconds as the brain starves of oxygen.

Louisiana announced Feb. 10 that it had created its protocol for execution by nitrogen hypoxia — a method the state legislature adopted last year. The following day, a court in St. Tammany Parish set Hoffman's execution date for March 18.

Ten days after announcing its lethal gas protocol, the state served Hoffman with a death warrant informing him that he would be the first person in the state to be executed under the new method.

In federal court filings at the end of February, Hoffman sought to stop the execution, arguing that the newly adopted method posed a substantial risk of "a lingering or unnecessarily painful death" because of its distressing nature, a lack of training and experience of the execution team, and the rapid and opaque implementation of the new method.

He pointed out that Louisiana law forbids gassing as a method of euthanasia for cats and dogs. And he cited multiple media sources and eyewitness accounts of Alabama executions in which prisoners "struggled to breathe," "heaved and retched inside the mask," and "gasped for air."

"Nitrogen gas has been used to kill condemned individuals in only one state, Alabama, and each of the four times it has been used it has resulted in an excruciating, prolonged death that was horrifying for both the person being executed and those who bore witness," Hoffman said in a complaint.

A practicing Buddhist for over two decades, Hoffman also alleged that nitrogen gas execution would have prevented him from engaging in his practice of breathing in meditation at the time of death, saying it violated his rights under the Religious Land Use and Institutionalized Persons Act.

To meet U.S. Supreme Court precedent, Hoffman proposed two alternative methods of execution he said were feasible: a firing squad or a medical-aid-in-dying protocol consisting of a cocktail of drugs — digoxin, diazepam, morphine, amitriptyline, phenobarbital — used in physician-assisted deaths.

On March 11, days after holding an evidentiary hearing in which she heard evidence about the risks posed by nitrogen hypoxia — including the testimony of an anesthesiologist who said it can cause "conscious terror and a sense of suffocation" that can last up to 40 seconds — U.S. District Judge Shelly D. Dick for the Middle District of Louisiana granted an injunction preventing the state from executing Hoffman using nitrogen.

In her ruling, the judge said she agreed with medical testimony that "the deprivation of oxygen to the lungs causes a primal urge to breathe and feelings of intense terror when inhalation does not deliver oxygen to the lungs" and that the method caused "severe psychological pain."

The day after the ruling, a federal judge in Alabama denied that state's motion to dismiss a prisoner's challenge to its lethal gas execution protocol, finding the prisoner, David P. Wilson, had established a substantial risk of unconstitutional pain and suffering.

A divided panel of the U.S. Court of Appeals for the Fifth Circuit, however, vacated Judge Dick's ruling on March 14, holding that only physical pain is relevant to an Eighth Amendment claim.

Two days before his execution, attorneys for Hoffman asked the U.S. Supreme Court to halt it.

In his petition for review, Hoffman argued that execution by nitrogen gas would "superadd terror and mental anguish" compared with execution by the firing squad, which the district court had agreed was a viable alternative under the high court's rulings. Hoffman also reaffirmed his religious liberty claim.

"The Supreme Court has repeatedly held that prisoners must be allowed to practice their religion as their lives are being taken by execution," Kappel said in a statement following the high court filing. "There are plenty of execution methods Louisiana could adopt that would not interfere with Jessie's ability to practice his Buddhist meditative breathing, and only one, nitrogen gas, that makes it impossible for him to do so."

Hoffman ultimately failed to convince at least five justices to halt his execution.

States Reignite Execution Programs

Hoffman's was one of four executions carried out across the United States this week.

In November 1996, Hoffman, then 18 years old, abducted Mary "Molly" Elliott, a 28-year-old advertising executive, at gunpoint as she retrieved her car. He forced her to withdraw $200 from an ATM before driving to a remote area in St. Tammany Parish, where he raped her and then fatally shot her in the head. Hoffman was sentenced to death in September 1998.

On Wednesday, Arizona used lethal injection to execute Aaron Gunches, who was convicted of the 2002 killing of his then-girlfriend's former husband. John Barcello, the deputy director of Arizona's department of corrections, told reporters after the execution that it was carried out "according to plan without any incident at all," according to media accounts.

It was the first death sentence to be carried out in Arizona since 2022, when the state halted executions amid a review of its lethal injection protocol following a series of problematic executions in 2021.

On Thursday, Florida and Oklahoma also used lethal injections to kill Edward Thomas James and Wendell Grissom, respectively. James was convicted of the rape and murder of an 8-year-old girl. Grissom was convicted of killing a 23-year-old woman during a home invasion.

At least 11 more executions are planned this year, according to the Death Penalty Information Center.

Executions were carried out in nine states in 2024. Four states — Alabama, Missouri, Oklahoma and Texas — accounted for two-thirds of the executions. Indiana resumed its executions in December by killing Joseph Edward Corcoran, a man convicted of a quadruple murder and the first person to be executed in the state after a 15-year moratorium on executions. Arizona and Tennessee had announced they were ready to restart executions after pausing them temporarily.

But as more states look to restart executions, often at the culmination of multiyear review processes focusing on existing protocols and the exploration of new execution methods, Maher of the Death Penalty Information Center cautions against seeing these developments as signs of broader support for capital punishment.

Current public support for the death penalty hovers at 52%, a five-decade low, and polls have shown that a majority of people ages 18 to 43 now opposes capital punishment.

Overall, the number of newly imposed death sentences continues to be much lower than in the past: As of December 2023, the total was roughly one-fifth of the number imposed 20 years earlier.

"It's important to remember that executions in the states are scheduled by elected officials, for reasons of their own, but are not an indication of growing public support or new enthusiasm for the death penalty," Maher said.

--Editing by Orlando Lorenzo. Graphics by Ben Jay.

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