The state of Louisiana carried out its first execution using nitrogen gas on Tuesday evening after the Supreme Court declined to intervene.
The vote was 5-4 with Justice Neil M. Gorsuch joining the court’s three Democratic appointees in dissenting from the majority’s refusal to stay the execution.
Jessie Hoffman had petitioned the justices earlier in the week, protesting being put to death through nitrogen hypoxia. He was the state’s first inmate put to death using this method.
Hoffman argued the state’s new mode of execution violates the 8th Amendment, which bans cruel and unusual punishment. He is a Buddhist and claimed the method could interfere with his religious breathing techniques.
He had been convicted of the 1996 rape and murder of Mary “Molly” Elliot.
Justice Gorsuch said that claim was never weighed in full by the 5th U.S. Circuit Court of Appeals, so he would have granted the stay of execution and ordered the lower court to review that argument.
“Perhaps that claim ultimately lacks merit. But the Fifth Circuit’s unexplained omission leaves this Court poorly positioned to assess it,” Justice Gorsuch wrote.
Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson also would have granted the stay.
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.
In January, Alabama inmate Kenneth Eugene Smith became the first prisoner executed in the U.S. using nitrogen gas. Eyewitnesses said he convulsed in seizure-like movements for minutes before he was pronounced dead.
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.
Hoffman was pronounced dead at 7:08 p.m. local time.
