Sotomayor Condemns Supreme Court’s ‘Rush’ in Tenn. Execution

The U.S. Supreme Court “turned a blind eye” to the potential suffering of a Tennessee death row inmate when it refused to halt his execution Aug. 9, Justice Sonia Sotomayor said.

Billy Ray Irick was executed Aug. 9 by lethal injection for raping and murdering a 7-year-old in the 1980s.

In a sharply worded and lone dissent to the Supreme Court’s stay denial, Sotomayor lashed out at her colleagues for their refusal to step in to halt Irick’s death.

“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,” Sotomayor said.

News reports indicated that Irick closed his eyes and snored after the drugs were administered, then there was “coughing, huffing and deep breaths” before his face turned purple and he was later pronounced dead.

Irick’s petition raised issues about the delivery of death serum used for lethal injection and the larger issue about the constitutionality of the death penalty.

Irick argued that the method the state planned to use could cause extreme pain akin to torture. The claim was similar to that rejected by the court in a 2015 decision that also split the justices 5-4.

Midazolam is part of a three-drug cocktail used in several botched executions that have resulted in severe and prolonged pain.

If the drug fails to work as intended—to block pain—it “will cause him to experience sensations of drowning, suffocating, and being burned alive from the inside out,” Sotomayor said.

Given “the life-or-death stakes,” Sotomayor said she would have allowed “the state courts more time to consider Irick’s claims” that another, less risky option was available.

National Disagreement

The decision is the latest in a national disagreement over the use of the death penalty.

In the 2015 case, Justices Ruth Bader Ginsburg and Stephen G. Breyer indicated that they’d like to revisit the constitutionality of the death penalty. But so far, the court hasn’t taken up such a sweeping challenge. The court has, however, addressed more limited challenges to the death penalty.

As evidenced by Sotomayor’s solo dissent, the court’s more liberal justices haven’t voted consistently in death penalty cases. Justices, though, do not always publicly note their dissent in an order relating to a stay request.

The execution was the first in Tennessee since 2009, according to The Next to Die.

The case is Irick v. Tennessee, U.S., No. 18A145, stay denied 8/9/18.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com