Judge tosses death penalty lawsuit because Louisiana can't get execution drugs – The Advocate

Death Row at the Louisiana State Penitentiary in Angola on Tuesday, June 13, 2017. Lawmakers are debating a bill that would shield the state’s lethal injection process from the public. (Photo by Brett Duke, NOLA.com | The Times-Picayune)
Death Row at the Louisiana State Penitentiary in Angola on Tuesday, June 13, 2017. Lawmakers are debating a bill that would shield the state’s lethal injection process from the public. (Photo by Brett Duke, NOLA.com | The Times-Picayune)
A federal judge has dismissed a lawsuit challenging Louisiana’s execution procedure, saying there’s no dispute to settle since the state has been unable to obtain the drugs needed to kill inmates.
Inmate Jessie Hoffman sued the state in 2012, claiming Louisiana wouldn’t disclose how it planned to kill him. The state’s protocol at the time was dated Jan. 7, 2010, but Louisiana was no longer able to obtain all the drugs listed.
With Louisiana still unable to obtain the drugs under current protocol, U.S. District Judge Shelly Dick on Wednesday granted the state’s motion to dismiss the case — but she gave the inmates the right to refile the suit. She said she believed the state’s contention that it was no longer trying to obtain drugs for lethal injections.
Less than a day after Dick’s ruling, state Attorney General Jeff Landry said that, with the lawsuit dead for now, Louisiana needs to “remove any other obstacles” and pursue the inmates’ executions.
The state has not carried out an execution since Gerald Bordelon was voluntarily put to death in 2010 for the murder of his 12-year-old stepdaughter, Courtney LeBlanc. Prior to Bordelon, Louisiana had not executed anyone since 2002. 
Michael D. Rubenstein, Hoffman’s Attorney, said Thursday that his team was still reviewing the ruling to determine what, if any, steps to take. He and representatives with the Promise of Justice Initiative declined to comment further. 
Hoffman initially argued that the state’s inability to obtain sodium thiopental would result in cruel and unusual punishment. After Louisiana adopted another protocol in 2013, using only pentobarbital, Hoffman and another inmate argued their punishment would still be prohibited under the U.S. Constitution.
A 2014 protocol added a second option: sedative midazolam and hydromorphone. But from 2014 to 2018, both sides agreed to a series of stays of execution, and agreed they should extend to all of Louisiana’s five-dozen-plus inmates on death row.
“Facts and issues involved in this proceeding continue to be in a fluid state,” lawyers for the state wrote. “It would be a waste of resources and time to litigate this matter at present.”
In July 2018, things changed. The attorney general pulled his staff lawyers off the case. Then, he blamed Gov. John Bel Edwards for the delay.
“The meeting of the minds between the parties about the fluid state of affairs was disrupted around the time Attorney General Jeff Landry, whose in-house and retained counsel had consented to stays in this matter, issued a press release … blaming Governor Edwards for failing to move forward with executions in Louisiana,” Dick wrote.
Last year, Landry’s office asked Dick to dismiss the case, saying Louisiana has been unable to find the required drugs, leaving the federal court with nothing to decide. The Louisiana Department of Corrections has said pharmaceutical companies have threatened to cut off supplies of beneficial drugs if the state uses them to execute inmates.
Hoffman, 44, was convicted 24 years ago for the November 1996 kidnap, robbery, rape and murder of 28-year-old advertising executive Mary “Molly” Elliot. According to court documents, Hoffman kidnapped Elliot at gunpoint one night as she walked to her car parked in the New Orleans garage where he worked as an attendant.
He forced Elliot to drive to an ATM machine to take money from her account so he could rob her, then made her drive to a remote part of St. Tammany Parish where he raped and fatally shot her. 
Lawyers for the inmates said they couldn’t determine whether what Landry’s office said is true, and that the state could change its mind at any time and try to get the drugs.
Dick said she found no evidence that the state was merely posturing, because the DOC agreed it would “no longer attempt to obtain execution drugs so that (it) may retain access to pharmaceutical products that protect the medical needs of the inmate population.”
“There being no live controversy,” Dick wrote, “the court lacks subject-matter jurisdiction.”
Metro editor Kelly P. Kissel contributed to this report. 
Email Elyse Carmosino at ecarmosino@theadvocate.com.
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