Over sharp dis­sents by jus­tices of the U.S. and Tennessee Supreme Courts and lin­ger­ing ques­tions about the pris­on­er’s his­to­ry of men­tal ill­ness and the effi­ca­cy of the state’s lethal-injec­tion pro­to­col, Tennessee exe­cut­ed Billy Ray Irick (pic­tured) on August 9. He was the first per­son exe­cut­ed by the state since 2009. Justice Sonia Sotomayor described the process as a ​“rush to exe­cute” and a descent into ​“bar­barism.”

In the days lead­ing up to the exe­cu­tion, the Tennessee Supreme Court and Tennessee Governor Bill Haslam reject­ed Irick’s request for a stay or clemen­cy. The state Supreme Court ruled on August 6 that Irick had failed to show his chal­lenge to the exe­cu­tion pro­to­col was like­ly to suc­ceed on appeal, a require­ment for the court to allow the law­suit to proceed. 

Judge Sharon Lee dis­sent­ed from the major­i­ty deci­sion, writ­ing, ​“The harm to Mr. Irick of an uncon­sti­tu­tion­al exe­cu­tion is irrepara­ble. Yet the harm to the State from briefly delay­ing the exe­cu­tion until after appel­late review is min­i­mal, if any.” 

Governor Bill Haslam declined to exer­cise his clemen­cy pow­er in Irick’s case, say­ing that the judi­cial review of the case was ​“extreme­ly thor­ough.” Gene Shiles, Irick’s attor­ney dis­agreed: ​“The truth is no facts relat­ing to Billy’s state mind at the time of the offens­es — includ­ing his hal­lu­ci­na­tions and talk­ing to ​‘the dev­il’ were ever con­sid­ered by a sin­gle court on the mer­its. These facts, the most impor­tant to rea­soned deci­sions as to guilt and pun­ish­ment, were instead ​‘default­ed’ and nev­er weighed because they were deter­mined to be untime­ly — raised too long after the trial.” 

The U.S. Supreme Court denied a stay, but Justice Sonia Sotomayor strong­ly dis­sent­ed from that denial, writ­ing, ​“In refus­ing to grant Irick a stay, the Court today turns 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. I can­not in good con­science join in this ​‘rush to exe­cute’ with­out first seek­ing every assur­ance that our prece­dent per­mits such a result. 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.” 

The Tennessean report­ed that Irick’s exe­cu­tion was ​“cer­tain to fuel a fierce nation­al debate sur­round­ing the drugs used to kill him, and if they amount to state-sanc­tioned tor­ture.” Federal pub­lic defend­er Kelley Henry said Irick exhib­it­ed signs of pul­monary ede­ma dur­ing an exe­cu­tion that took more than twen­ty min­utes. Henry said media wit­ness­es had report­ed that ​“Mr. Irick ​‘gulped for an extend­ed peri­od of time,’ was ​‘chok­ing,’ ​‘gasp­ing,’ ​‘cough­ing,’ and that ​‘his stom­ach was mov­ing up and down.’ Witnesses described move­ment, includ­ing move­ment of the head, after the con­scious­ness check. This means that the sec­ond and third drugs were admin­is­tered even though Mr. Irick was not uncon­scious,” Henry said. Media reports indi­cat­ed that the sec­ond and third drugs, a par­a­lyt­ic agent and potas­si­um chlo­ride, would cause a pain sim­i­lar to drown­ing and being burned alive. 

(Dave Boucher, Jamie Satterfield, Adam Tamburin, and Holly Meyer, Billy Ray Irick exe­cu­tion brings no res­o­lu­tion to lethal injec­tion debate, Nashville Tennessean, August 10, 2018; Marcia Coyle, Sotomayor’s Barbed Dissent in Death Penalty Case Charges ​‘Rush to Execute’, The National Law Journal, August 9, 2018; Dave Boucher and Adam Tamburin, Supreme Court denies stay of exe­cu­tion for Billy Ray Irick, Haslam will not inter­vene, Nashville Tennessean, August 6, 2018; Jonathan Mattise, Tennessee high court refus­es to block loom­ing exe­cu­tion, Daily Journal, August 6, 2018.) Read Justice Sotomayor’s dis­sent from the denial of stay. See Mental Illness and Lethal Injection.

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