The Reasons Behind Justice Gorsuch’s Dissent on Meditative Breathing in the “Hell of the Execution Chamber”

​The mindfulness movement encourages people to focus on the now, to be in the moment as they work, but also as they walk, trim the shrubs, drive the kids to school, and boil the spaghetti.
 
How about mindfulness at the moment of one’s execution?
 
In Buddhism, the practice of Maranasati is to use mindful breathing to reach the deepest level of contemplation. Many Buddhists engage in meditation and other spiritual practices as they actually are dying.
 
One person who sought to do this was the recently departed Jessie Hoffman, 46, a convert to Buddhism who wished to engage in meditative breathing as he died. He was prevented from doing so, however, because of the manner of his death, which happened Tuesday night. Hoffman had been sentenced to be lawfully executed for first-degree murder and became the first person in Louisiana to have a mask strapped on his face to be asphyxiated by breathing nitrogen gas.
 
Hoffman faced the death penalty because he had, at age 18, kidnapped 28-year-old Molly Elliott, raped her, shot her in the head, and left her naked body by a river.
 
After 27 years of appeals, the U.S. Fifth Circuit Court of Appeals rejected a stay of Hoffman’s execution, dismissing the claim that death by nitrogen amounted to a violation of the Eighth Amendment’s prohibition of “cruel and unusual punishment.”
 
Four Supreme Court Justices, including Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson would have granted Hoffman’s application for a stay. Justice Neil Gorsuch wrote a short dissent explaining his reasoning.
 
Justice Gorsuch noted that no one “has questioned the sincerity of Mr. Hoffman’s religious beliefs.” This is relevant to the application of the Religious Land Use and Institutionalized Persons Act (RLUIPA), which forbids the government from violating a prisoner’s sincerely held religious beliefs. Justice Gorsuch took a lower court to task for issuing its own “find[ing] about the kind of breathing that Mr. Hoffman’s faith requires.”
 
Given the failure of the lower court to fully vet Hoffman’s claim – and the “Fifth Circuit’s unexplained omission” in doing so – Justice Gorsuch announced that he would have granted the stay and vacated the judgment. He would also have remanded the case for the Fifth Circuit to address Hoffman’s RLUIPA claim.
 
This is reminiscent of another case, Ramirez v. Collier (2020), in which the Court ruled in favor of John Henry Ramirez, a man on death row in Texas who petitioned to have his minister lay a hand on him as he received a lethal injection. The Court sided with Ramirez, 8-1. The prisoner’s minister was permitted, in fact, to place his right hand on Ramirez as he died.
 
On its face, the idea of being able to engage in meditative breathing while ceasing to breathe altogether sounds a bit absurd. Prosecutors are always alert to prisoners who manufacture religious objections to extend their lives. Hoffman had requested that he be executed by firing squad, which would, to say the least, have also interfered with his meditative breathing.
 
But Justice Gorsuch reminds us that the free practice of religion, at the most solemn moment of a person’s life, should command sufficient respect to fully explore an RLUIPA claim. At the very least, Hoffman’s claim deserved more consideration, even if it was ultimately rejected.

Ramirez’s attorney, Seth Kretzer, said it best: “The First Amendment applies in the most glorified halls of power and also in the hell of the execution chamber.”

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