Justice Sonia Sotomayor dissented from the Supreme Court’s refusal to stay the execution of Billy Irick last Thursday, writing that the Court was turning “a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis.”
The State of Tennessee, which had not executed anyone since 2009, announced in January that its lethal injection protocol would include the problematic drug midazolam, which has been involved in several botched executions nationwide. Mr. Irick challenged the protocol and, in a recent 10-day trial, presented undisputed evidence from medical experts who “explained in painstaking detail how the three-drug cocktail Tennessee plans to inject into Irick’s veins will cause him to experience sensations of drowning, suffocating, and being burned alive from the inside out.” Justice Sotomayor wrote that the midazolam may temporarily render Mr. Irick unconscious, but “the onset of pain and suffocation will rouse him” and he “may well be aware of what is happening to him” during a process that “will last at least 10 minutes, and perhaps as many as 18, before the third drug (potassium chloride) finally induces fatal cardiac arrest. Meanwhile, as a result of the second drug (vecuronium bromide), Irick will be ‘entirely paralyzed, unable to move or scream.'”
The trial court decided on July 26 that “Irick’s extensive and persuasive evidence describing the ordeal that awaits him raised no constitutional concerns,” and without taking time to review the pleadings, trial transcripts, or exhibits, the Tennessee Supreme Court refused to postpone the execution to allow appellate review. Justice Sharon Lee dissented. “The harm to Mr. Irick of an unconstitutional execution is irreparable,” she wrote. “Yet the harm to the State from briefly delaying the execution until after appellate review is minimal, if any.”
Mr. Irick’s lawyers appealed to the United States Supreme Court to stay the execution, and Justice Sotomayor wrote that the stay should have been granted to allow the state courts more time to consider Mr. Irick’s claims.
“I cannot in good conscience join in this ‘rush to execute’ without first seeking every assurance that our precedent permits such a result,” she wrote in dissent. “If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism.”
Media witnesses to the execution reported that, after the second drug was administered, Mr. Irick jolted and was coughing, choking and gasping for air. He moved his head slightly and appeared to briefly strain his forearms against the restraints. The color in his face changed to purple about 11 minutes before he was pronounced dead.
In a statement following the execution, Federal Public Defender Kelley Henry said those were signs that the midazolam failed, just as the medical experts testified it would. “This means that the second and third drugs were administered even though Mr. Irick was not unconscious,” she wrote. “The descriptions also raise troubling questions about the State’s attempt to mask the signs of consciousness including by taping down his hands which would have prevented the witnesses from observing the failure of the midazolam.”
Mr. Irick was the 15th inmate executed this year in the United States and the first in Tennessee in nearly a decade. Two more executions are scheduled in Tennessee later this year.