Petition for Writ of Certiorari — Jessie Hoffman, Petitioner v. Gary Westcott, Secretary, Louisiana Department of Public Safety and Corrections, et al.
Supreme Court briefMar 16, 2025
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No. _____
IN THE
Supreme Court of the United States
_________
JESSIE HOFFMAN,
Petitioner,
v.
GARY WESTCOTT, SECRETARY, LOUISIANA
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS;
DARREL VANNOY, WARDEN, LOUISIANA STATE
PENITENTIARY, IN HIS OFFICIAL CAPACITY; JOHN
DOES, UNKNOWN EXECUTIONERS,
Respondents.
________
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fifth Circuit
________
PETITION FOR A WRIT OF CERTIORARI
________
Cecelia Trenticosta
LOYOLA CENTER FOR
SOCIAL JUSTICE
7214 St. Charles Avenue
New Orleans, LA 70118
(504) 861-5735
ctkappel@defendla.org
Andrianna D. Kastanek
Counsel of Record
Alexis E. Bates
Andrew L. Osborne
JENNER & BLOCK LLP
353 North Clark Street
Chicago, IL 60654
(312) 222-9350
akastanek@jenner.com
i
CAPITAL CASE
QUESTIONS PRESENTED
1. Whether a method of execution that superadds
psychological suffering—including terror and mental
anguish—compared to an available alternative method
violates the Eighth Amendment’s bar on cruel and
unusual punishment.
2. Whether execution by nitrogen gassing
substantially burdens Mr. Hoffman’s Buddhist faith, in
violation of the Religious Land Use and Institutionalized
Persons Act, 42 U.S.C. § 2000cc et seq. (“RLUIPA”), by
denying him the opportunity to meditatively breathe
during his final moments.
ii
PARTIES TO THE PROCEEDING
Petitioner is Jessie Hoffman. Respondents are Gary
Westcott, Secretary, Louisiana Department of Public
Safety and Corrections; Darrel Vannoy, Warden,
Louisiana State Penitentiary, in his official capacity; and
John Does, Unknown Executioners.
RELATED PROCEEDINGS
Hoffman v. Westcott, No. 25-169-SDD-SDJ, 2025 WL
763945 (M.D. La. Mar. 11, 2025)
Hoffman v. Westcott, No. 25-70006, 2025 WL 816734
(5th Cir. Mar. 14, 2025)
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED ............................................ i
PARTIES TO THE PROCEEDING ..............................ii
RELATED PROCEEDINGS...........................................ii
TABLE OF AUTHORITIES ......................................... vi
OPINIONS BELOW .......................................................... 1
JURISDICTION ................................................................. 1
CONSTITUTIONAL
AND
STATUTORY
PROVISIONS INVOLVED ............................................. 1
INTRODUCTION .............................................................. 2
STATEMENT OF THE CASE ........................................ 4
I. Factual Background. ..................................................... 4
A. Louisiana Authorizes Nitrogen Gassing. ............. 5
B. Louisiana Sprints To Execute Mr.
Hoffman By Nitrogen Gassing After
Creating A Protocol. ............................................... 6
II. Proceedings Below. ....................................................... 7
A. District Court Proceedings. ................................... 7
B. The District Court’s Findings And
Decision. .................................................................... 9
1. The Eighth Amendment................................... 9
2. RLUIPA. .......................................................... 13
C. The Fifth Circuit’s Decision. ................................ 16
REASONS FOR GRANTING THE PETITION........ 19
iv
I. The Court Should Grant Certiorari To
Resolve The Issue Of Whether Superadded
Psychological Terror By A Method Of
Execution Can Be Cruel And Unusual
Punishment................................................................... 19
A. The Fifth Circuit’s singular focus on
physical pain conflicts with this Court’s
precedent. ............................................................... 19
B. The Fifth Circuit’s singular focus on
physical pain is inconsistent with the case
law of other circuits. .............................................. 21
C. The Fifth Circuit reached its result only by
disregarding the district court’s factual
findings, which is inconsistent with this
Court’s longstanding precedent and that of
other circuits. ......................................................... 24
II. The Judgment Below Does Not Faithfully
Apply This Court’s Ramirez Precedent. ................. 27
III. This Case Provides An Ideal Vehicle To
Resolve Issues Of Nationwide Importance As
States Innovate With New Methods Of
Execution. ..................................................................... 31
A. The questions presented are important. ............ 32
B. This case is a good vehicle. ................................... 33
CONCLUSION ................................................................. 35
Appendix A
Hoffman v Westcott, No. 25-70006, 2025
WL 816734 (5th Cir. Mar. 14, 2025)............ 1a–10a
v
Appendix B
Ruling, Hoffman v Westcott, No. 25169-SDD-SDJ, 2025 WL 763945 (M.D.
La. Mar. 11, 2025) ....................................... 11a–51a
Appendix C
Order, Hoffman v. Westcott, No. 25169-SDD-SDJ (M.D. La. Mar. 11, 2025) .. 52a–53a
Appendix D
Transcript of Hearing on Motion for
Preliminary Injunction before the Hon.
Shelly D. Dick (Vol. 1 of 2), Hoffman v.
Westcott, No. 25-169-SDD-SDJ (M.D.
La. Mar. 7, 2025) ......................................... 54a–66a
Appendix E
Transcript of Hearing on Motion for
Preliminary Injunction before the Hon.
Shelly D. Dick (Vol. 2 of 2), Hoffman v.
Westcott, No. 25-169-SDD-SDJ (M.D.
La. Mar. 7, 2025) ......................................... 67a–68a
vi
TABLE OF AUTHORITIES
Page(s)
Cases
Anderson v. Bessemer City,
470 U.S. 564 (1985).................................................... 25
Apodaca v. Raemisch,
586 U.S. 931 (2018).................................................... 20
Babcock v. White,
102 F.3d 267 (7th Cir. 1996)..................................... 23
Baze v. Rees,
553 U.S. 35 (2008).................................................. 2, 31
Bucklew v. Precythe,
587 U.S. 119 (2019)........................ 2, 16, 20, 24, 32, 33
CAE Integrated, L.L.C. v. Moov Techs., Inc.,
44 F.4th 257 (5th Cir. 2022) ..................................... 25
Clark v. Coupe,
55 F.4th 167 (3d Cir. 2022)....................................... 22
Deckert v. Indep. Shares Corp.,
311 U.S. 282 (1940).................................................... 15
In re: Federal Skywalk Cases,
680 F.2d 1175 (8th Cir.), cert. denied, 459
U.S. 988 (1982)........................................................... 15
vii
Gerling Global Reinsurance Corp. of Am. v.
Low,
240 F.3d 739 (9th Cir. 2001)..................................... 15
Glossip v. Gross,
576 U.S. 863 (2015).......................................... 2, 25, 32
Grayson v. Comm’r, Alabama Dep’t of Corr.,
121 F.4th 894 (11th Cir.), cert. denied sub
nom. Grayson v. Hamm, 145 S. Ct. 586
(2024) .......................................................................... 22
Grayson v. Hamm,
145 S. Ct. 586 (2024) ................................................. 34
Holt v. Hobbs,
574 U.S. 352 (2015).................................................... 27
Hudson v. McMillian,
503 U.S. 1 (1992)........................................................ 20
Inwood Lab’ys, Inc. v. Ives Lab’ys, Inc.,
456 U.S. 844 (1982).................................................... 25
Jordan v. Gardner,
986 F.2d 1521 (9th Cir. 1993)................................... 23
Leiser v. Kloth,
933 F.3d 696 (7th Cir. 2019)..................................... 23
Munaf v. Geren,
553 U.S. 674 (2008).................................................... 15
viii
Murphy v. Collier,
587 U.S. 901 (2019).................................................... 30
Nance v. Ward,
597 U.S. 159 (2022).................................................... 24
In re Ohio Execution Protocol Litig.,
881 F.3d 447 (6th Cir. 2018)............................... 21, 22
Perkins v. Kansas Dep’t of Corr.,
165 F.3d 803 (10th Cir. 1999)................................... 23
Ramirez v. Collier,
595 U.S. 411 (2022).................................... 4, 27, 28, 30
Scher v. Engelke,
943 F.2d 921 (8th Cir. 1991)..................................... 23
Shakka v. Smith,
71 F.3d 162 (4th Cir. 1995)....................................... 23
Smith v. Hamm,
144 S. Ct. 414 (2024) ............................... 24, 32, 33, 34
Swint v. Chambers Cnty. Comm’n, 514 U.S.
35 (1995) ..................................................................... 15
Thomas v. Farley,
31 F.3d 557 (7th Cir. 1994)....................................... 23
Trop v. Dulles,
356 U.S. 86 (1958)...................................................... 20
ix
Watts v. Indiana,
338 U.S. 49 (1949)...................................................... 20
White v. Napoleon,
897 F.2d 103 (3d Cir. 1990) ...................................... 22
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008).......................................................... 9
Constitutional Provisions and Statutes
U.S. Const. amend. VIII.................................................. 1
28 U.S.C. § 1254(1) ............................................................ 1
28 U.S.C. § 1292(a)(1) ..................................................... 15
42 U.S.C. § 1983 ............................................................ 1, 7
42 U.S.C. § 2000cc ............................................................. 2
42 U.S.C. § 2000cc-1(a) ............................................... 2, 27
La. Rev. Stat. § 15:569 (1991).......................................... 5
La. Rev. Stat. § 15:569(A)(1)–(3) .................................... 5
Other Authorities
La. Acts 2024, 52nd Ex. Sess., No. 5, §1 (eff.
July 1, 2024) ................................................................. 5
Religious Land Use and Institutionalized
Persons Act of 2000, Pub. L. 106–274,
codified at 42 U.S.C. § 2000cc et seq. ........................ 2
1
OPINIONS BELOW
The ruling of the United States District Court for the
Middle District of Louisiana is not published but is
reproduced in the Appendix hereto at Pet. App. 11a–51a.
The opinion of the Fifth Circuit is not yet published in
the Federal Reporter but is reproduced in the Appendix
hereto at Pet. App. 1a–10a; see also Pet. App. 52a-53a.
JURISDICTION
On March 14, 2025, the Fifth Circuit entered
judgment vacating the preliminary injunction entered
by the District Court on March 11, 2025. Pet. App. 1a–
10a. This Court has jurisdiction under 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Eighth Amendment of the U.S. Constitution
provides: “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. Const. amend. VIII.
42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State … subjects, or causes to be subjected, any
citizen of the United States or other person
within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or
other proper proceeding for redress[.]
2
The Religious Land Use and Institutionalized
Persons Act of 2000, Pub. L. 106–274, codified at 42
U.S.C. § 2000cc et seq. (“RLUIPA”), provides:
No government shall impose a substantial burden
on the religious exercise of a person residing in or
confined to an institution, as defined in section
1997 of this title, even if the burden results from
a rule of general applicability, unless the
government demonstrates that imposition of the
burden on that person-(1) is in furtherance of
governmental interest; and
a
compelling
(2) is the least restrictive means of furthering
that compelling governmental interest.
42 U.S.C. § 2000cc-1(a).
INTRODUCTION
The Eighth Amendment forbids forms of execution
that intensify a death sentence with “superaddition of
terror, pain, or disgrace.” Bucklew v. Precythe, 587 U.S.
119, 133 (2019) (quoting Baze v. Rees, 553 U.S. 35, 48
(2008)) (cleaned up). To succeed on a methodof-execution challenge under the Eighth Amendment, an
inmate must show that a “feasible, readily implemented”
alternative procedure that would “significantly reduce a
substantial risk of severe pain.” Baze, 553 U.S. at 52;
Glossip v. Gross, 576 U.S. 863, 877 (2015).
The district court faithfully applied that standard,
exercising its discretion to conclude that Mr. Hoffman
was likely to succeed on the merits of his Eighth
3
Amendment challenge to Louisiana’s newest method of
execution: nitrogen hypoxia, which is the deprivation of
oxygen through the forced inhalation of pure nitrogen
until a person dies. The district court’s determination
was based on its findings of fact after hearing hours of
expert testimony that nitrogen gassing inflicts sustained
psychological terror far more severe than the
alternative of execution by firing squad.
The Fifth Circuit incorrectly disregarded the district
court’s findings as irrelevant, vacating the injunction on
the basis that the Eighth Amendment analysis focuses
on comparative physical pain; psychological suffering, it
reasoned, no matter how severe, does not suffice. The
Fifth Circuit’s categorical rejection of psychological
suffering as a constitutional consideration ignores
Supreme Court precedent holding that psychological
terror is a component of cruel and unusual punishment,
and it is flatly at odds with the approaches of other
circuits that have long recognized that psychological
terror and distress is relevant in the constitutional
analysis.
The Fifth Circuit also departed from this Court’s
precedent in its refusal to consider Mr. Hoffman’s
RLUIPA claim. Mr. Hoffman is a long-practicing
Buddhist. The record evidence unrebutted by the State
establishes that, in Buddhist tradition, meditative
breathing at the time of death carries profound spiritual
significance, founded in the core belief that meditation
and unfettered breath at the time of transition from life
to death determines the quality of rebirth.
4
This Court held in Ramirez v. Collier, 595 U.S. 411
(2022), in the analogous context of a pastor laying hands
on an individual being executed, that RLUIPA prohibits
a state from substantially burdening a condemned
inmate’s religious exercise in his final moments (unless
it is the least restrictive way to advance a compelling
state interest). Significantly, the district court found in
the context of its Eighth Amendment analysis that, with
nitrogen gassing, “conscious terror and a sense of
suffocation endures for 35 to 40 seconds” and potentially
“3 to 5 minutes if an unwilling inmate holds his breath.”
Pet. App. 35a. Execution by nitrogen hypoxia is thus
fundamentally incompatible with a Buddhist meditative
state and breathing practice. Yet, the Fifth Circuit
inexplicably, and incorrectly, did not even mention—
much less provide reasons to reject—Mr. Hoffman’s
argument on his cross-appeal that the district court’s
preliminary injunction should be affirmed on the
alternative ground that his scheduled method of
execution violates his rights under RLUIPA.
This Court should grant the petition and reverse the
Fifth Circuit’s order, with instructions to remand to the
district court for full consideration of the merits.
STATEMENT OF THE CASE
I. Factual Background.
In 1998, Mr. Hoffman was convicted of first-degree
murder. Pet. App. 12a. He was sentenced to death and is
currently on Death Row at the Louisiana State
Penitentiary in Angola, Louisiana. Id. He is scheduled to
be executed on March 18, 2025, by nitrogen hypoxia. Pet.
5
App. 12a–13a. Mr. Hoffman does not challenge the
validity of his conviction or death sentence.
A. Louisiana Authorizes Nitrogen Gassing.
From 1991 until 2024, Louisiana law authorized only
lethal injection as the method of execution. La. Rev.
Stat. § 15:569 (1991). In 2024, the Louisiana legislature
added nitrogen hypoxia and electrocution as authorized
methods of execution for condemned inmates. See La.
Acts 2024, 52nd Ex. Sess., No. 5, §1 (eff. July 1, 2024).
Louisiana is one of four states that authorize execution
by nitrogen hypoxia, which is the forced deprivation of
oxygen through the inhalation of pure nitrogen until a
person dies. Alabama is the only state that has actually
used the method for execution; it has done so four times
since January 2024.
The State’s nitrogen gassing protocol mirrors
Alabama’s. Mr. Hoffman will be strapped to a gurney
with a secured full-face silicon mask. ROA.3642-43. The
nitrogen hypoxia system uses industrial grade, not
medical grade, nitrogen. ROA.3297. When the system is
activated, the industrial grade nitrogen will be
introduced into the mask “at a flow rate of 70 L/minute”
for fifteen (15) minutes or five minutes following a
flatline indication on the electrocardiogram. ROA.3644.
But the circumstances here differ fundamentally
from the nitrogen hypoxia executions in Alabama in one
critical respect. All four of the inmates executed in
Alabama by nitrogen hypoxia affirmatively chose this
method. Pet. App. 48a–49a. By contrast, in Louisiana,
the prisoner is not provided a choice of method of
execution. See La. Rev. Stat. § 15:569(A)(1)–(3)
6
(granting Secretary of the Department of Public Safety
and Corrections unfettered authority to choose between
the methods in carrying out a sentence of death). Mr.
Hoffman thus would not only be the first inmate
executed by nitrogen gassing in Louisiana; he would be
the first inmate in the nation executed by nitrogen
gassing without having elected this method of execution.
B. Louisiana Sprints To Execute Mr. Hoffman By
Nitrogen Gassing After Creating A Protocol.
Before the State served Mr. Hoffman with his
warrant of execution less than one month ago, he
repeatedly attempted to raise method-of-execution
claims. In March 2024, in light of the new legislation
authorizing nitrogen gassing, Mr. Hoffman filed a
grievance with the prison challenging all three statutory
methods of execution. This grievance was rejected as
“premature” as the law had “yet to take legal effect.”
Pet. App. 21a (capitalization omitted). Mr. Hoffman tried
again in July 2024, as soon as the statute went into effect.
Id. He received the same response in part because no
valid death warrant had issued. Id.; Pet. App. 4a–5a.
Things changed drastically in the last five weeks. On
February 10, 2025, the State announced for the first
time, via press release, that it had established a nitrogen
hypoxia protocol—but it did not release or disclose the
protocol. See Pet. App. 57a. On the same day, the State
sought execution warrants for Mr. Hoffman and others.
On February 12, 2025, Mr. Hoffman’s execution warrant
was signed, and his execution was set for March 18, 2025.
When Mr. Hoffman filed an emergency grievance,
ROA.190103, the State told him that it would issue him
7
a response within 40 days—that is, after the thenscheduled execution date, ROA.1900.
In the State’s race to execute Mr. Hoffman with a
month’s notice, it only informed Mr. Hoffman as to the
method of execution on February 20, 2025, eight days
after the issuance of his warrant. ROA.136; see Pet. App.
12a. And the State first disclosed a redacted copy of its
nitrogen hypoxia protocol to Mr. Hoffman’s counsel only
upon order of the district court on February 28, 2025,
and even then, it was not until three days before the
evidentiary hearing that, by order of the district court,
“the State produced the protocol to Hoffman pursuant to
a protective order.” Pet. App. 15a.
II. Proceedings Below.
A. District Court Proceedings.
On February 25, Mr. Hoffman filed this suit pursuant
to 42 U.S.C. § 1983, challenging the State’s nitrogen
gassing execution method under the Eighth
Amendment and RLUIPA. ROA.21–73. He moved for a
preliminary injunction the next day. ROA.86–88.
On February 28, 2025, the district court entered a
scheduling order that required all discovery to be
conducted, and witness and exhibit lists exchanged,
within one week. See ROA.12.
On March 6, 2025, the district court granted in part
and denied in part the State’s motion to dismiss the
complaint. See ROA.18 (Text Entry Only, Corrective
Order (M.D. La. Mar. 6, 2025), ECF No. 79). Pertinent
here, the district court dismissed Mr. Hoffman’s
RLUIPA claim, finding that the nitrogen gas protocol
8
did not substantially burden the practice of his religion.
Pet. App. 55a–56a; Pet. App. 61a–63a. It denied the
motion to dismiss Mr. Hoffman’s Eighth Amendment
claim. Pet. App. 63a.
The district court held a nearly 12-hour evidentiary
hearing on March 7, 2025. Pet. App. 17a. The hearing
included extensive testimony of the parties’ competing
medical experts regarding whether execution by
nitrogen hypoxia would superadd terror or pain in
violation of the Eighth Amendment. See Pet. App. 30a–
44a. Mr. Hoffman and two Buddhist clerics also testified
regarding Mr. Hoffman’s religious practices, the
importance of meditative breathing to traditional
Buddhist religious practices, and the role of meditative
breathing at the time of death. ROA.3145–48, 3154-56;
ROA.3163, 3169–72; ROA3219, 3222–25.
Dr. Philip Bickler, a Board-certified anesthesiologist
who the State stipulated was an expert in the fields of
anesthesiology and human hypoxia, testified on behalf of
Mr. Hoffman. Pet. App. 30a. The district court found Dr.
Bickler “to be superbly qualified in the field of human
hypoxia, owing to his long and extensive clinical work in
the effect of low oxygen (hypoxia) on humans.” Pet. App.
30a–31a. Dr. Bickler “has conducted at least 5,000
hypoxia studies on humans involving administering low
oxygen containing gas and monitoring the subjects’
responses” and “has published extensively in peerreviewed scientific and medical journals regarding the
physiological effects of hypoxia on humans and other
animals.” Pet. App. 31a.
9
Dr.
Joseph
Antognini,
a
Board-Certified
anesthesiologist, testified for the State. Pet. App. 30a.
Unlike Dr. Bickler, “Dr. Antognini has never clinically
studied the effects of hypoxia on humans” and he has
neither “published nor presented any studies regarding
the effects of nitrogen hypoxia.” Pet. App. 31a. Dr.
Antognini has served as an expert for the State of
Alabama—the only other state that has used nitrogen
hypoxia—in every case the state has had concerning
execution by nitrogen hypoxia, but he has never
observed an execution using this method. Pet. App. 37a.
B. The District Court’s Findings And Decision.
1. The Eighth Amendment.
After finding that Mr. Hoffman exhausted
administrative remedies under the Prison Litigation
Reform Act, Pet App. 23a–24a, the district court found
that Mr. Hoffman satisfied the elements necessary to
secure a preliminary injunction on his Eighth
Amendment claim. Pet App. 24a; see Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008).
a. The district court applied the correct legal
standard, guided by this Court’s precedent: “whether
the State’s chosen method of execution intensifies the
sentence of death with a (cruel) superaddition of terror,
pain or disgrace” and that “[t]o establish that a State’s
chosen method cruelly ‘superadds’ pain to the death
sentence, a prisoner must show a feasible and readily
implemented
alternative
method
that
would
significantly reduce a substantial risk of severe pain and
that the State has refused to adopt without a legitimate
penological reason.” Pet. App. 26a–27a (quoting
10
Bucklew, 587 U.S. at 119–20, 133) (cleaned up). The
district court also correctly acknowledged that the
analysis requires a “comparative exercise.” Pet. App.
27a (quoting Nance v. Ward, 597 U.S. 159, 164 (2022)).
Applying this standard, the district court concluded
that Mr. Hoffman is likely to succeed on the merits of his
Eighth Amendment claim. Its factual findings were twofold: (1) “nitrogen hypoxia superadds psychological pain,
suffering, and terror to [Mr. Hoffman’s] execution when
compared to execution by firing squad,” Pet. App. 43a;
and (2) “execution by firing squad is a feasible and
readily available alternative that the State has no
legitimate penological reason for not adopting.” Id.
The district court’s first finding—that nitrogen
hypoxia “poses a substantial risk of conscious terror and
psychological pain,” Pet. App. 37a–38a—had three
components.
First, the district court found that nitrogen hypoxia
“produces a terror response.” Pet. App. 32a. “[T]he
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.” Pet. App. 35a. The
physiological effects of oxygen depletion, including that
when nitrogen replaces oxygen in the lungs of a subject,
amounts to “forced asphyxiation” where the subject
would feel “extreme discomfort, distress, pain, and
terror … up to the point of losing consciousness.” Pet.
App. 32a (citation omitted). And given the reservoir of
air in the lungs, “it may take a number of minutes
depending on the breathing volume for nitrogen to wash
out all the oxygen that is remaining in the lungs.” Id.
11
Second, nitrogen hypoxia causes “emotional terror”
and “severe psychological pain [] until the loss of
consciousness.” Pet. App. 32a, 35a. The State’s expert
agreed that “severe emotional suffering” occurs when
“oxygen deprivation in the lungs triggers an instinctual
response driven by respiratory centers in the brain that
tell [the] body to breathe,” yet “breathing will kill you”
because of the nitrogen. Pet. App. 33a. There was thus
“agreement among the experts that the inability to quiet
the primal urge to breathe is severe emotional
suffering.” Id. Based on this testimony, the district court
found 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,”
which causes “severe psychological pain” that endures
until consciousness is lost. Pet. App. 35a
Third, the conscious terror and sense of suffocation
from nitrogen hypoxia can last up to three to five
minutes. Pet. App. 33a–35a. While a person
administered pure nitrogen will lose consciousness in
less than one minute if he breathes normally, “the ability
to cooperate (repeatedly inhale deeply) would require
the condemned to mentally overcome the primal urge to
breathe that is triggered by lack of oxygen.” Pet.
App. 33a–34a. The experts agreed that the primal urge
to conserve oxygen through holding one’s breath would
increase the time until loss of consciousness. Pet.
App. 34a. For this reason, the district court declined to
credit Dr. Antognini’s estimate that unconsciousness
will occur “within 35 to 40 seconds or perhaps sooner,”
an estimate the court found was “nothing more than a
12
scientific hypothesis” that “remains untested and
unsubstantiated.” Pet. App. 36a–37a (citation omitted).
In making these factual findings, the district court
credited Dr. Bickler’s testimony, informed by 30 years
of clinical research experience studying hypoxia in
humans, over Dr. Antognini’s “untested scientific
hypotheses” and reliance on “irrelevant or
unpersuasive” studies. Pet. App. 34a, 37a. Despite his
work supporting Alabama in its four nitrogen hypoxia
executions, Dr. Antognini had not observed a single
execution to corroborate whether his hypotheses hold
water. Pet. App. 37a. Dr. Bickler’s opinions, on the other
hand, were “corroborate[d] and reinforce[d],” not only
by his studies but by reports from eyewitnesses to the
four Alabama nitrogen hypoxia executions. Id.
b. The district court also concluded that Mr.
Hoffman “clearly demonstrated that he is substantially
likely to prevail in his assertion that nitrogen hypoxia
superadds pain and terror as compared to firing squad.”
Pet. App. 40a.
The district court credited the unrebutted testimony
of the only expert at the hearing with firearms
expertise—Dr. James Williams—who the State
stipulated was an expert in emergency medicine and
firearms. Pet. App. 38a–40a; ROA.3226–27. Execution
by firing squad is the “process of firing multiple high
caliber bullets” at someone’s heart. Pet. App. 39a. Based
on Dr. Williams’ testimony, the district court found that
when the bullets strike the heart, the individual will
become unconscious in about three to four seconds. Pet.
App. 38a–40a. The district court thus reasonably
13
concluded that nitrogen hypoxia superadds conscious
pain and terror as compared to a firing squad. Pet. App.
40a.
c. The district court also concluded that there is no
legitimate penological reason why Louisiana could not
adopt Mr. Hoffman’s proposed alternative method of
execution. Pet. App. 40a–41a. Five other states use the
firing squad as a method of execution, suggesting its
viability, and the Louisiana Department of Public Safety
and Corrections has a supply of firearms, ammunition,
and trained officers. Pet. App. 41a.
d. On the other preliminary injunction factors, the
district court found that Mr. Hoffman “will most
certainly suffer irreparable harm if his claim for
injunctive relief is not decided prior to his March 18, 2025
execution date.” Pet App. 25a. And the court determined
that the balance of the equities and public interest favor
a preliminary injunction. Pet. App. 47a–50a. The court
reasoned that “[t]he State’s desire for swiftness does not
prevail over well-informed deliberation[,]” Pet. App.
48a, and “[i]t is in the best interests of the public to
examine [the State’s] newly proposed method of
execution on a fully developed record,” Pet. App. 50a.
2. RLUIPA.
Based on evidence presented at the preliminary
injunction hearing, Mr. Hoffman moved to reconsider
the district court’s March 6, 2025 decision dismissing his
RLUIPA claim. Pet. App. 67a, 68a. In addition to the
testimony presented at the hearing about the prolonged
psychological suffering caused by nitrogen gassing, Mr.
Hoffman presented the lay and expert testimony of two
14
Buddhist clerics, Reverend Michaela Bono and Brother
Reimoku Gregory Smith, who testified that a traditional
religious practice of Buddhists is meditative breathing;
that Buddhist practices emphasize maintaining clear,
mindful awareness during the dying process; that
nitrogen gassing would prevent Mr. Hoffman from
engaging in conscious meditation by altering the
breathing process and creating psychological distress;
and that by creating feelings of panic and air hunger,
nitrogen hypoxia would contradict the calm state sought
in Buddhist religious practice. ROA.317174;
ROA.322325. Mr. Hoffman also testified about his own
religious practices: that he started practicing Buddhism
in 2002 and engages in twice-daily meditative breathing
as part of his religious and spiritual practice. ROA.3145
46. In short, the evidence established that Mr. Hoffman’s
religious beliefs call for him to die in a state of meditation
and rhythmic breathing.
The district court declined to reconsider its dismissal
of Mr. Hoffman’s RLUIPA claim and thus to
preliminarily enjoin Mr. Hoffman’s execution on this
ground. Pet. App. 19a–20a. Effectively converting the
motion to reconsider as a motion for summary judgment,
the court considered the evidence from the hearing and
held that the evidence did not support Mr. Hoffman’s
RLUIPA claim.
Specifically, the court found based on the record
evidence that “meditative breathing is an exercise
attendant to practicing Hoffman’s chosen faith of
Buddhism,” which “calls its adherents to a ritual of
breathing rhythmically to achieve a meditative state”
15
“analogous to Western religions’ practice of prayer.” Id.
It also found, in the context of the Eighth Amendment
claim, that nitrogen gassing “causes a primal urge to
breath and feelings of intense terror when inhalation
does not deliver oxygen to the lungs” and “severe
psychological pain[,]” for minutes until the “loss of
consciousness.” Pet. App. 35a. The district court
nonetheless—and quite inexplicably—concluded that
“substituting nitrogen for atmospheric air does not
substantially burden Hoffman’s ability to breath,” Pet.
App. 19a. As discussed below, the district court’s
rejection of the RLUIPA claim cannot be reconciled
with its factual findings on the Eighth Amendment
claim.1
1
Where a party, like the State, appeals interlocutorily from the
entry of a preliminary injunction, see 28 U.S.C. § 1292(a)(1), the
appellate court’s jurisdiction extends to other claims that are
intertwined with the injunction order. See Deckert v. Indep. Shares
Corp., 311 U.S. 282, 287 (1940) (the “power [to hear interlocutory
appeals from the entry of a preliminary injunction] is not limited to
mere consideration of, and action upon, the order appealed from”);
Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 50–51 (1995)
(jurisdiction extends to other issues where “necessary to ensure
meaningful review” of injunction); In re: Federal Skywalk Cases,
680 F.2d 1175, 1180 (8th Cir.), cert. denied, 459 U.S. 988 (1982)
(jurisdiction under § 1292(a)(1) extends to the denial of an
injunction, and where “the injunction is interdependent with the
remainder of the appealed order, ... the entire order insofar as it has
been appealed”). Here, Mr. Hoffman filed a cross-appeal of the
district court’s denial of his motion to reconsider dismissal of his
RLUIPA claim. The validity of the RLUIPA claim is bound up with
the injunction: The district court erred in finding that nitrogen
gassing does not substantially burden Mr. Hoffman’s exercise of his
16
C. The Fifth Circuit’s Decision.
On March 14, 2025, a divided panel of the Fifth
Circuit
vacated
the
preliminary
injunction.
Disregarding the district court’s factual findings, and
ignoring the evidence adduced at the hearing, a majority
of the panel held that Mr. Hoffman cannot succeed on an
Eighth Amendment challenge to nitrogen hypoxia as a
method of execution because death by gassing does not
cause physical pain, while Mr. Hoffman’s suggested
alternative method of execution, a firing squad, is “more
painful.” Pet. App. 2a–3a.
Implicit in the majority’s holding is a legal rule and
findings of fact, both of which are wrong. First, the
majority suggested a categorical rule that the Eighth
Amendment requires a petitioner to show that the
alternative method of execution is less physically
painful than the chosen method, regardless of
psychological effect. While giving lip service to the
Court’s recognition that the “superaddition” of terror
can violate the Eighth Amendment, Bucklew, 587 U.S.
at 133, the majority reasoned that “expert testimony
from both parties” established “that nitrogen hypoxia is
painless,” while “death by firing squad can cause pain.”
Pet. App. 6a–7a. From this differential in physical pain,
the court concluded that “[Mr.] Hoffman cannot possibly
prevail under the legal standards set forth by the
Supreme Court in Glossip and Bucklew.” Pet. App. 7a.
religion. Once that error is corrected, the valid RLUIPA claim
provides a basis to preliminarily enjoin Mr. Hoffman’s execution
because Mr. Hoffman has demonstrated a likelihood of success on
the merits of that claim.
17
Second, this conclusion was based on a factual finding
about the comparative physical pain caused by a firing
squad, versus nitrogen gassing, unsupported by any
evidence in the record. Id.
The majority addressed psychological terror in a
single paragraph, again ignoring the evidence: “Hoffman
presented no [ ] evidence of superadded terror to the
court—let alone evidence of how execution by a firing
squad would substantially mitigate that terror.” Pet.
App. 8a. The majority appeared to believe that the
psychological terror of hypoxia is reducible to the fear of
death, inherent in any method of execution, which
cannot be squared with the expert testimony. Expert
testimony established that nitrogen hypoxia causes an
involuntary response (threat to sympathetic nervous
system, convulsions, gasping for air) because the body
recognizes that it is performing the function of breathing
but instead is inhaling something that is not air,
triggering extreme panic. ROA.3356–57, 3359, 3350–51,
3348–49 (Bickler testimony). This response is separate
from the fear of death—it is superadded torturous harm.
The panel majority entirely ignored Mr. Hoffman’s
RLUIPA claim, pressed by Mr. Hoffman as an
alternative basis for affirming the district court’s
preliminary injunction and the subject of his crossappeal. See Pet. App. 1a–8a.
Judge Haynes dissented. The majority, in Judge
Haynes’s view, failed to “adequately address the facts as
properly found by the district court[.]” Pet. App. 10a.
The majority’s legal analysis overlooked factual findings
“crucial to the Eighth Amendment analysis” without
18
finding clear error. Pet. App. 9a–10a. “For example,”
Judge Haynes wrote, “the majority opinion states that
breathing pure nitrogen causes unconsciousness in less
than a minute. But it fails to address the district court’s
finding that ‘[o]n the low end, conscious terror and a
sense of suffocation endures for 35 to 40 seconds,’ while
‘[o]n the high end, conscious psychological suffering
endures for 3 to 5 minutes if an unwilling inmate holds
his breath.’” Pet. App. 9a. The alternative method of
execution by a firing squad, by contrast, would render
the inmate unconscious in three to four seconds. Pet.
App. 10a. That is a significant difference that is crucial
to the Eighth Amendment analysis. Id.
In addition, in Judge Haynes’ view, “the district
court properly exercised its discretion in granting a
preliminary injunction given the limited amount of time
Hoffman had to challenge his execution by nitrogen
hypoxia, which is new in Louisiana.” Pet. App. 9a. The
dissent explained: “Hoffman tried throughout and did
not wait until the last minute. Instead, the state did not
let him challenge earlier.” Id. Judge Haynes noted that
the rushed nature of these proceedings was attributable
solely to the State: “The timeline in which [Mr. Hoffman]
could challenge it and the setting of his execution date,
which is March 18, all happened within the last month.
As the district judge thoroughly discusses, there are
issues that need more time to be resolved and decided.
Obviously, that cannot be done once he is dead.” Id.
Mr. Hoffman timely filed this petition for certiorari.
19
REASONS FOR GRANTING THE PETITION
I. The Court Should Grant Certiorari To Resolve The
Issue Of Whether Superadded Psychological
Terror By A Method Of Execution Can Be Cruel
And Unusual Punishment.
The Fifth Circuit departed from this Court’s
precedent, and the well-established rule in other circuits
that psychological terror can constitute cruel and
unusual punishment, by holding that Mr. Hoffman did
not show a likelihood of success on his Eighth
Amendment claim because death by firing squad is
purportedly more painful than suffocation. Because all
executions purportedly “involve[] some measure of
psychological terror,” the majority reasoned, the
evidence credited by the district court—that “nitrogen
hypoxia superadds pain and terror as compared to firing
squad”—was not relevant. Pet App. 7a–8a.
This analysis, which categorically disregards the role
of psychological distress in the constitutional analysis, is
wrong. It is inconsistent with the direction given by this
Court in case after case, including Bucklew. It is
inconsistent with the approach of other circuits. And it
flouts the well-established rule of appellate review that
a district court’s findings of fact must be given deference
by an appellate court.
A. The Fifth Circuit’s singular focus on physical
pain conflicts with this Court’s precedent.
The majority’s decision is flatly inconsistent with this
Court’s Eighth Amendment precedent, which has
20
consistently recognized psychological suffering as a
component of cruel and unusual punishment.
Just five years ago, this Court defined cruel and
unusual punishment in a way that lays bare the Fifth
Circuit’s error. While the Eighth Amendment does not
guarantee a painless death, the Court explained, the
Eighth Amendment forbids forms of execution that
intensify a death sentence with “superadditions of
terror, pain, or disgrace.” Bucklew, 587 U.S. at 133
(cleaned up). And of course, “terror” and “disgrace” are
emotional states that require no physical injury. Indeed,
the Court explained that the established recognition of a
form of punishment as “cruel” if “disposed to give pain
to others, in body or mind” goes back centuries. Id. at
130 (emphasis added) (quoting 1 N. Webster, An
American Dictionary of the English Language (1828)).
Bucklew’s approach comports with the long-standing
recognition that punishment need not be physically
painful to be cruel and unusual. See Trop v. Dulles, 356
U.S. 86, 101 (1958). For example, in Watts v. Indiana,
338 U.S. 49 (1949), the Court explained: “There is torture
of mind as well as body; the will is as much affected by
fear as by force. And there comes a point where this
Court should not be ignorant as judges of what we know
as men.” Id. at 52 (emphasis added); see also Apodaca v.
Raemisch, 586 U.S. 931, 931, 937 (2018) (Sotomayor, J.,
dissenting from denial of certiorari). Indeed, “the Eighth
Amendment prohibits the unnecessary and wanton
infliction of ‘pain,’ rather than ‘injury.’” Hudson v.
McMillian, 503 U.S. 1, 16–17 (1992) (Blackmun, J.,
21
concurring). And “‘[p]ain’ in its ordinary meaning surely
includes a notion of psychological harm.” Id.
The decision below reflects a troubling narrowing of
this jurisprudence. By focusing almost exclusively on
the comparative physical pain from a firing squad versus
nitrogen gassing, and largely dismissing psychological
suffering as constitutionally irrelevant, the majority’s
approach represents a stark departure from the Court’s
precedent. It erects—from thin air—a barrier at the
threshold of an Eighth Amendment challenge to a
method of execution that finds no support in the text, or
this Court’s precedent.
B. The Fifth Circuit’s singular focus on physical
pain is inconsistent with the case law of other
circuits.
The Fifth Circuit’s physical-pain-only approach also
is in tension with the approach of most courts of appeals.
On the one hand, the Fifth Circuit has now endorsed
the view favoring nitrogen hypoxia over a firing squad
based on physical pain alone. The Sixth Circuit appears
to adhere to that view, too, agreeing in In re Ohio
Execution Protocol Litig., 881 F.3d 447 (6th Cir. 2018),
“with th[e] assessment” that “[u]nless accompanied by
serious physical pain, the mental suffering associated
with being under a sentence of death is not material to
the Eighth Amendment inquiry under Baze and
Glossip.” Id. at 450 (citation omitted).
Other circuits have taken the opposite view. For
example, in a case involving Alabama’s nitrogen hypoxia
protocol, the Eleventh Circuit specifically disagreed
22
with the Sixth Circuit’s holding in In re Ohio Execution
Protocol Litig., 881 F.3d 447, that “psychological pain or
mental suffering cannot by itself support an Eighth
Amendment claim” Grayson v. Comm’r, Alabama Dep’t
of Corr., 121 F.4th 894, 900 n.3 (11th Cir.), cert. denied
sub nom. Grayson v. Hamm, 145 S. Ct. 586 (2024).
Instead, the Eleventh Circuit explained that “[t]here
may exist a form of execution that induces psychological
terror or pain that is severe enough to support an Eighth
Amendment claim,” given that this Court has “explained
that ‘what unites the punishments the Eighth
Amendment was understood to forbid’ includes the
‘superaddition of terror, pain, or disgrace.’” Id. (citing
Bucklew, 587 U.S. at 133). The Sixth Circuit emphasized
that from the Founding, cruel punishment could be
physical or mental, id. (citing Bucklew, 587 U.S. at 130),
and concluded that “[n]othing in [its] Eighth
Amendment jurisprudence suggests a special exemption
for psychological terror or pain from the prohibition on
cruelty.” Id.
The Third, Fourth, Seventh, Eighth, Ninth, and
Tenth Circuits agree, long holding that infliction of
psychological mental pain can violate the Eighth
Amendment. The Third Circuit has noted “general
consensus among the Courts of Appeals” that “a threat
of serious psychological injury invokes Eighth
Amendment protection.” Clark v. Coupe, 55 F.4th 167,
184–85 (3d Cir. 2022); cf. White v. Napoleon, 897 F.2d
103, 111 (3d Cir. 1990) (“We are not prepared to hold that
inflicting mental anxiety alone cannot constitute cruel
and unusual punishment.”). The Fourth Circuit has
recognized that “significant physical or emotional harm”
23
can constitute an Eighth Amendment violation. Shakka
v. Smith, 71 F.3d 162, 166 (4th Cir. 1995) (emphasis
added).
Meanwhile, the Seventh Circuit has described the
Eighth Amendment bar on cruel and unusual
punishment as “includ[ing] both physical and
psychological harm.” Leiser v. Kloth, 933 F.3d 696, 703
(7th Cir. 2019). See also Babcock v. White, 102 F.3d 267,
273 (7th Cir. 1996) (“[T]he Constitution does not
countenance psychological torture merely because it
fails to inflict physical injury.”); Thomas v. Farley, 31
F.3d 557, 559 (7th Cir. 1994) (“Mental torture is not an
oxymoron, and has been held or assumed in a number of
prisoner cases, … to be actionable as cruel and unusual
punishment.” (emphasis added)). The Eighth, Ninth, and
Tenth Circuits, too, have recognized that infliction of
psychological injury can violate the Eighth Amendment.
Scher v. Engelke, 943 F.2d 921, 924 (8th Cir. 1991)
Jordan v. Gardner, 986 F.2d 1521, 1529–30 (9th Cir.
1993) (en banc); Perkins v. Kansas Dep’t of Corr., 165
F.3d 803, 810 (10th Cir. 1999).
The Fifth Circuit’s decision thus deepens a divide
between the circuits on whether superaddition of
psychological terror, pain, or disgrace may be discarded
in the Eighth Amendment analysis. This Court should
grant the petition to resolve the split.
24
C. The Fifth Circuit reached its result only by
disregarding the district court’s factual
findings, which is inconsistent with this Court’s
longstanding precedent and that of other
circuits.
The Fifth Circuit’s opinion also ignored the district
court’s findings of fact, including findings based on
extensive expert testimony about the effects of nitrogen
gassing on the human body. In so doing, the court
departed from fundamental principles of appellate
review to vacate the injunction.
1. Showing that “the risk of pain associated with the
State’s method is substantial when compared to a known
and available alternative,” Bucklew, 587 U.S. at 134
(internal quotation marks and citation omitted), requires
a “comparative assessment” between methods, see
Nance v. Ward, 597 U.S. 159, 164 (2022). The assessment
of relative terror or pain thus requires a court to make
factual findings about the respective methods, including
based on expert opinion and eyewitness observations.
Cf. Smith v. Hamm, 144 S. Ct. 414, 416 (2024) (Kagan, J.,
dissenting from the denial of application for stay and
denial of certiorari) (“[The] standard can work fairly
only when more is capable of being known about an
execution method.”).
The district court faithfully made detailed findings of
fact, as part of the required comparative assessment,
and based on those findings, “properly exercised its
discretion in granting a preliminary injunction given the
limited amount of time Hoffman had to challenge his
25
execution by nitrogen hypoxia, which is new in
Louisiana.” Pet. App. 9a (Haynes, J., dissenting).
2. In reviewing the district court’s grant of a
preliminary injunction, the Fifth Circuit was required to
review the district court’s findings of fact for clear error,
meaning it could not “overturn a finding ‘simply because
[it is] convinced that [it] would have decided the case
differently.’” Glossip, 576 U.S. at 881 (quoting Anderson
v. Bessemer City, 470 U.S. 564, 573 (1985)).
This limit on the Fifth Circuit’s authority is an
elementary principle of appellate review. Inwood
Lab’ys, Inc. v. Ives Lab’ys, Inc., 456 U.S. 844, 855 (1982)
(reviewing court “must accept the trial court’s findings”
unless highly deferential standard applicable to factual
findings is satisfied); CAE Integrated, L.L.C. v. Moov
Techs., Inc., 44 F.4th 257, 261 (5th Cir. 2022) (“We
review factual findings for clear error … giving due
regard to the trial court’s opportunity to judge the
witnesses’ credibility.” (internal quotation marks and
citation omitted)). When “a trial judge’s finding is based
on his decision to credit the testimony of one of two or
more witnesses, each of whom has told a coherent and
facially plausible story that is not contradicted by
extrinsic evidence, that finding, if not internally
inconsistent, can virtually never be clear error.”
Anderson, 470 U.S. at 575. An appellate court cannot
evade the clear error standard simply by ignoring the
facts.
That is precisely what the panel majority did here—
it ignored the district court’s key factual findings on
conscious terror and made its own findings to avoid the
26
issue. Pet App. 7a. Just two examples suffice. As Judge
Haynes observed in dissent, the panel majority never
acknowledged the district court’s finding that conscious
terror and a sense of suffocation endures for at least 35
to 40 seconds but can last up to three to five minutes. Pet.
App. 9a. Rather than engage with that finding, the panel
majority made its own factual finding that “[b]reathing
100% pure nitrogen causes unconsciousness in less than
a minute.” Pet. App. 3a.
The majority also ignored the district court’s finding
that execution by firing squad would render Mr.
Hoffman unconscious in three to four seconds. Pet. App.
39a. Rather than engage with the district court’s
comparative assessment of conscious terror caused by
the two methods, the Fifth Circuit summarily concluded
that Mr. Hoffman had presented “no [ ] evidence of
superadded terror.” Pet. App. 8a (emphasis added). In
other words, the majority found an abuse of discretion
by simply ignoring the facts and evidence on which the
district court based preliminary injunctive relief. And
that tactic, in turn, is what allowed the majority to
conclude that the “district court’s theory would render
capital punishment itself unconstitutional—because
surely every method of execution necessarily involves
some measure of psychological terror.” Id.
The Fifth Circuit thus effectively disregarded the
district court’s factual findings regarding the
psychological suffering associated with nitrogen hypoxia
execution. The majority’s willingness to substitute its
own factual conclusions without even attempting to
demonstrate the clear error in the district court’s
27
findings was flat wrong—and at odds with fundamental
principles of appellate review. This provides sufficient
grounds to grant the petition and summarily reverse.
II. The Judgment Below Does Not Faithfully Apply
This Court’s Ramirez Precedent.
The district court’s dismissal of Mr. Hoffman’s
RLUIPA claim, and the Fifth Circuit’s refusal to even
consider it as an alternative basis for affirming the
preliminary injunction, cannot be squared with
Ramirez, the factual record, or common sense. The
district court’s detailed factual findings on the Eighth
Amendment claims directly undermine its conclusory
analysis of the burden on Mr. Hoffman’s religious
practice.
A. RLUIPA aims to provide “greater protection for
religious exercise than is available under the First
Amendment.” Holt v. Hobbs, 574 U.S. 352, 357 (2015).
The law provides that “[n]o government shall impose a
substantial burden on the religious exercise of a person
residing in or confined to an institution, … even if the
burden results from a rule of general applicability,
unless the government demonstrates that imposition of
the burden on that person -- (1) is in furtherance of a
compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling
governmental interest.” 42 U.S.C. § 2000cc–1(a). It
applies to state prisoners. Ramirez, 595 U.S. at 424–25.
A plaintiff must show “that a prison policy ‘implicates
his religious exercise[,]’” the burden on his religious
exercise is “substantial,” and his requested
accommodation is “sincerely based on his religious belief
28
and not some other motivation.” Id. at 425 (quoting Holt,
574 U.S. at 360–61). The burden then flips, and the State
must prove that imposition of the burden on the plaintiff
“is the least restrictive means of furthering a compelling
governmental interest.” Id. (citation omitted).
B. There is no question that Mr. Hoffman is a
practicing Buddhist: He converted to Buddhism
approximately 20 years ago, and practices meditation
twice daily. ROA.3145–46. There also is no question that
meditative breathing is an exercise attendant to
practicing Buddhism, and that meditation at the time of
death holds particular import. ROA.3172 (Reverend
Bono testifying: “[I]n Buddhism, your final moments are
very important, and ... they can negatively impact what’s
called the Bardo, which is the realm between death and
then your next rebirth.”). The only question is whether
the district court erred in finding that suffocating Mr.
Hoffman using nitrogen hypoxia does not substantially
burden his religious practice, and whether the Fifth
Circuit erred in refusing to even consider the RLUIPA
claim in vacating the district court’s preliminary
injunction.
The answer to both questions is Yes.
C. The district court’s own findings on the Eighth
Amendment claim make clear that nitrogen gassing is
incompatible with meditative breathing and thus
substantially burdens Mr. Hoffman’s religious practice.
According to the district court, and supported by
testimony and evidence presented at the March 7, 2025
hearing.
29
1. Eyewitness accounts of all four Alabama
executions by nitrogen gassing reveal that the prisoners
experienced “conscious terror for several minutes,
shaking, gasping, and other evidence of distress.” Pet.
App. 29a. The eyewitnesses to those executions
observed “vigorous convulsing and shaking for four
minutes,” “repeated gasping while conscious,” and “two
minutes of shaking and trembling ‘followed by about six
minutes of periodic gulping breaths before [becoming
still].”’ Id.
2. Medical expert testimony at the preliminary
injunction hearing was consistent with the eyewitness
accounts. Pet. App. 32a. Having conducted clinical
studies about hypoxia on humans for 30 years, the
district court found that Dr. Bickler is well-familiar with
the physiological effects of oxygen depletion and
credited his explanation that nitrogen hypoxia
“hyperactivates our sympathetic nervous system,”
resulting in the individual “feel[ing] like [he’s] gasping
for air.” Id. It “produces a terror response” that makes
it impossible to breathe normally. Id. As the district
court found, in reliance on Dr. Bickler’s testimony, the
process of suffocating via nitrogen results in “terror”:
“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. … [T]his
causes severe psychological pain,” which could endure
for up to “3 to 5 minutes.” Pet. App. 35a.
In other words, one cannot breathe normally—much
less practice meditative breathing—when being gassed.
30
D. These findings, made in the context of the district
court’s Eighth Amendment analysis, require reversing
the Fifth Circuit’s judgment. They pit objective
scientifically-supported facts about the reality of
nitrogen gassing, on the one hand, against the Court’s
RLUIPA precedent, on the other.
The Court in Ramirez recognized the profound
importance of religious practice at the time of
execution—in Ramirez, the right to have a pastor touch
the prisoner and pray audibly during his final moments,
595 U.S. at 426–27; here, meditative breathing that is a
component of a Buddhist transitioning to death and
determines the quality of rebirth. As a matter of
religious equality, the same analysis that governed the
religious right of a Christian in Ramirez should govern
Mr. Hoffman’s asserted right to practice as a Buddhist
at the time of death. See Murphy v. Collier, 587 U.S. 901,
901–02 (2019) (Kavanaugh, J., concurring in grant of
application for stay) (Texas policy “allow[ing] a
Christian or Muslim inmate to have a state-employed
Christian or Muslim religious adviser present” in the
execution room, but not providing Buddhist inmates a
similar right, constitutes “governmental discrimination
against religion”); Ramirez, 595 U.S. at 439–40
(Kavanaugh, J., concurring) (noting the same).
Just as Ramirez’s Christian faith required pastoral
touch and prayer in his final moments, Mr. Hoffman’s
Buddhist faith requires the ability to maintain conscious,
meditative breathing during his final moments—a
practice at the core of Buddhist spiritual tradition to
maintain mindfulness during their transition from this
31
life. ROA.3172. Nitrogen hypoxia execution, which
forcibly disrupts breathing and induces unconsciousness
through oxygen deprivation, precludes Mr. Hoffman
from engaging in this protected, essential religious
practice. Under Ramirez, Louisiana should be required
to demonstrate that completely foreclosing this central
religious practice is the least restrictive means of
achieving a compelling interest—a burden it cannot
meet merely by asserting generalized interests in
execution protocol uniformity.
The Court should grant certiorari to clarify that,
where a Buddhist has a deeply rooted religious
commitment to maintaining conscious, meditative
breathing during the process of death, the state must
carry its burden of showing that execution via nitrogen
hypoxia is the least restrictive means of carrying out the
execution.
III. This Case Provides An Ideal Vehicle To Resolve
Issues Of Nationwide Importance As States
Innovate With New Methods Of Execution.
The newness of nitrogen gassing as a method of
execution, and the Fifth Circuit’s disregard for this
Court’s jurisprudence, demonstrates the importance of
providing clarity as to how courts should weigh
psychological impact in the constitutional analysis. This
case presents the ideal vehicle to do so, given the factual
record developed after a hearing that included expert
testimony—a unique posture in capital cases.
32
A. The questions presented are important.
Early in this Country’s history, death by hanging
was the most common form of execution. But as this
Court has described elsewhere, states evolved their
methods over time, often trying to make them more
humane. Bucklew, 587 U.S. at 133; Baze, 553 U.S. at 41–
42. States experimented with electrocution, firing
squads, lethal gas, and lethal injection.
Lethal injection with a drug cocktail is the most used
method among the states that use execution. But in the
past few decades, states have had increasing difficulty
obtaining the drugs necessary to carry out executions.
This Court described those challenges in Glossip v.
Gross, a decade ago, and the trend has not reversed itself
since then. 576 U.S. 863, 870–71 (2015). In cases where
lethal injection is unavailable, many states turn to
secondary methods or replace their protocols with new
methods altogether.
The latest trend is nitrogen hypoxia, the merits of
which this Court has not yet addressed. Bucklew, 587
U.S. at 141–42 (rejecting nitrogen hypoxia as a readily
available alternative because of the many unresolved
questions it raised as an execution method); Smith v.
Hamm, 144 S. Ct. 414, 415–16 (2024) (Sotomayor, J.,
dissenting from the denial of application for stay and
denial of certiorari) (describing nitrogen hypoxia as
“untested” and “entirely novel”).
Novel execution methods like nitrogen hypoxia
present unprecedented constitutional questions that
only this Court can authoritatively resolve. In addition
to assessing whether the method of execution is cruel
33
and unusual punishment under the Court’s articulated
standards, the Court may wish to consider whether “the
extremely demanding standard this Court established in
Glossip v. Gross . . . properly applies” to methods with so
short a track record and so many unknowns—such as the
new nitrogen gassing method. Smith, 144 S. Ct. at 416
(Kagan, J., dissenting from the denial of application for
stay and denial of certiorari) (citing Glossip, 576 at 877).
Among the unknowns are “how nitrogen gas should be
administered (using a gas chamber, a tent, a hood, a
mask, or some other delivery device); in what
concentration (pure nitrogen or some mixture of gases);
how quickly and for how long it should be introduced; or
how the State might ensure the safety of the execution
team, including protecting them against the risk of gas
leaks.” Bucklew, 587 U.S. at 141–42.
All of these factors and more are yet unexplored and
will undoubtedly inform whether the method superadds
“terror, pain, or disgrace.” Id. at 119. Full explanation of
that standard and how to evaluate it would aid lower
courts as they assess nitrogen hypoxia in the four states
that permit its use so far, and any other jurisdictions
that may add it in the future.
B. This case is a good vehicle.
Moreover, unlike many death penalty cases that
reach the Court with limited factual development, this
case includes detailed district court findings about the
psychological effects of nitrogen hypoxia execution,
making it an excellent vehicle for resolving the questions
presented.
34
This Court has previously declined to consider cases
challenging Alabama’s use of nitrogen hypoxia
execution. Smith, 144 S. Ct. 414 (2024); Grayson v.
Hamm, 145 S. Ct. 586 (2024). But in both Smith and
Grayson, the inmate had elected nitrogen hypoxia over
other methods of execution, under Alabama’s statutory
scheme. And the lower courts there were considering
largely theoretical arguments, without evidence
regarding real-world application of the method (e.g.,
violent writhing of the entire body causing the gurney to
move, prolonged gasping and convulsing for several
minutes, and visible signs of conscious distress, see Pet.
App. 29a).
Here, in stark contrast, this case now reaches this
Court under Louisiana’s statute, which provides the
inmate no choice of method of execution, and on a more
robust evidentiary record. The record includes expert
testimony, including Dr. Bickler’s extensive 30-year
experience studying the effects of nitrogen gassing on
humans. It includes evidence from four nitrogen hypoxia
executions conducted in Alabama. It includes the district
court’s detailed factual findings about the use of nitrogen
hypoxia under both the Eighth Amendment and
RLUIPA. With the benefit of this proper factual
development, this Court may fully consider the
questions presented and offer guidance on what will
almost certainly be an increasing number of execution
attempts using nitrogen hypoxia.
* * * *
In short, this case presents the Court an opportunity
to set the standard across jurisdictions with the benefit
35
of detailed factual findings from the district court,
eyewitness accounts of the Alabama nitrogen hypoxia
executions, and expert scientific testimony. Without
guidance from this Court, lower courts will continue to
reach inconsistent conclusions about the effects of
nitrogen hypoxia and whether the psychological
suffering it undisputedly causes must be considered in
the Eighth Amendment analysis.
CONCLUSION
The Court should grant the petition for certiorari.
Respectfully submitted,
Cecelia Trenticosta
LOYOLA CENTER FOR
SOCIAL JUSTICE
7214 St. Charles Avenue
New Orleans, LA 70118
(504) 861-5735
ctkappel@defendla.org
Andrianna D. Kastanek
Counsel of Record
Alexis E. Bates
Andrew L. Osborne
JENNER & BLOCK LLP
353 North Clark Street
Chicago, IL 60654
(312) 222-9350
akastanek@jenner.com
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.