Cite as: 585 U. S. ____ (2018) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
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No. 18A142
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BILLY RAY IRICK v. TENNESSEE
ON APPLICATION FOR STAY
[August 9, 2018]
The application for stay of execution of sentence of death
presented to JUSTICE KAGAN and by her referred to the
Court is denied.
JUSTICE SOTOMAYOR, dissenting from the denial of the
application for stay.
Tonight the State of Tennessee intends to execute Billy
Ray Irick using a procedure that he contends will amount
to excruciating torture. During a recent 10-day trial in the
state court, medical experts explained in painstaking
detail how the three-drug cocktail Tennessee plans to
inject into Irick’s veins will cause him to experience sensa-
tions of drowning, suffocating, and being burned alive
from the inside out. Abdur’Rahman v. Parker, No. 18–
183–II(III) (Ch. Ct. Davidson Cty., Tenn., July 26, 2018),
p. 21, and n. 7 (generally crediting the testimony of plain-
tiffs’ experts); Application for Stay of Execution 8–11
(summarizing that testimony); see also Arthur v. Dunn,
580 U. S. ___, ___ (2017) (SOTOMAYOR, J., dissenting from
denial of certiorari) (slip op., at 2). The entire process will
last at least 10 minutes, and perhaps as many as 18,
before the third drug (potassium chloride) finally induces
fatal cardiac arrest. No. 18–183–II(III), at 25–26. Mean-
while, as a result of the second drug (vecuronium bro-
mide), Irick will be “entirely paralyzed, unable to move or
scream.” Arthur, 580 U. S., at ___ (opinion of SOTOMAYOR,
J.) (slip op., at 2).
2 IRICK v. TENNESSEE
SOTOMAYOR, J., dissenting
But Irick may well be aware of what is happening to
him. In theory, the first drug in the three-drug protocol,
midazolam, is supposed to render a person unable to feel
pain during an execution. But the medical experts who
testified here explained that midazolam would not work,
and the trial court credited that testimony. Application
for Stay of Execution 8–11; No. 18–183–II(III), at 21; see
also Arthur, 580 U. S., at ___–___ (opinion of SOTOMAYOR,
J.) (slip op., at 3–4) (describing similar evidence in that
case). If the drug indeed fails, the consequences for Irick
will be extreme: Although the midazolam may temporarily
render Irick unconscious, the onset of pain and suffocation
will rouse him. And it may do so just as the paralysis sets
in, too late for him to alert bystanders that his execution
has gone horribly (if predictably) wrong.
The State does not appear to have rebutted meaningful-
ly any of this evidence.1 See No. 18–183–II(III), at 21, n. 7
——————
1 I say “appear,” and give only a general description of the evidence
apparently introduced at trial, because in the rushed context of this
emergency application, the trial record is not before this Court. I
therefore rely on the state courts’ orders and the parties’ filings to
discern what that record is likely to show.
The application comes to this Court in a hurried posture because
Tennessee first adopted its current midazolam-based protocol only in
January of this year. No. M1987–00131–SC–DPE–DD (Tenn., Aug. 6,
2018), p. 2. Irick, along with 32 coplaintiffs also under sentence of
death, promptly challenged it. Ibid. With Irick’s August 9 execution
date looming, the parties and the court brought this complex case to
trial in a matter of months. See ibid. The trial court issued its decision
on July 26, Irick filed a notice of appeal and moved to vacate his execu-
tion date on July 30, and a divided Supreme Court of Tennessee denied
Irick’s motion August 6. Id., at 3, 6. In the meantime, the Tennessee
Court of Appeals issued an order advising that it would not have
sufficient time to consider the issues raised by Irick’s appeal before his
scheduled execution. Abdur’Rahman v. Parker, No. M2018–01385–
COA–R3–CV (July 30, 2018). Given the precipitous pace of proceed-
ings, the Tennessee Supreme Court rendered its decision on Irick’s
motion to vacate without the benefit of the pleadings, trial transcripts,
or exhibits on which the trial court relied in reaching its decision. No.
Cite as: 585 U. S. ____ (2018) 3
SOTOMAYOR, J., dissenting
(“The Defendants’ two experts, while qualified, did not
have the research knowledge and [e]minent publications
that Plaintiffs’ experts did”). As noted above, the trial court
credited the evidence put on by Irick and his co-plaintiffs,
finding that they “established that midazolam does not
elicit strong analgesic [i.e., pain-inhibiting] effects,” and
that therefore Irick “may be able to feel pain from the
administration of the second and third drugs.” Id., at 21.
Those are the drugs that will paralyze him and create
sensations of suffocation and of burning that “ ‘may well be
the chemical equivalent of being burned at the stake’ ”
before eventually stopping his heart. Arthur, 580 U. S., at
___ (opinion of SOTOMAYOR, J.) (slip op., at 2) (quoting
Glossip v. Gross, 576 U. S. ___, ___ (2015) (SOTOMAYOR, J.,
dissenting) (slip op., at 2)). Accounts from other execu-
tions carried out using midazolam lend troubling credence
to the trial court’s finding. See No. 18–183–II(III), at 28
(noting testimony describing inmates’ “grimaces, clenched
fists, furrowed brows, and moans” during lethal injection
executions, including by use of midazolam); Glossip, 576
U. S., at ___ (SOTOMAYOR, J., dissenting) (slip op., at 19–
20).
Given the Eighth Amendment’s prohibition on “cruel
and unusual punishments,” one might think that such a
finding would resolve this case in Irick’s favor. And to
stay or delay Irick’s execution, the Tennessee Supreme
Court needed only to conclude that it is likely (not certain)
that Irick can persuade an appellate court that his claim
has merit. See Tenn. Sup. Ct. Rule 12(4)(E) (2017); No.
M1987–00131–SC–DPE–DD, at 3.
But the Tennessee Supreme Court did not find any such
likelihood and declined to postpone Irick’s execution to
allow appellate review of his claims. Id., at 3–5. The
——————
M1987–00131–SC–DPE–DD (Tenn., Aug. 6, 2018) (Lee, J., dissenting),
p. 4).
4 IRICK v. TENNESSEE
SOTOMAYOR, J., dissenting
court instead effectively let stand the trial court’s order,
which held that Irick’s extensive and persuasive evidence
describing the ordeal that awaits him raised no constitu-
tional concerns. The trial court offered two independent
reasons for its holding: first, that Irick had not proven that
another, less painful method of killing him was available
to the State; and second, even assuming Irick had proven a
readily available alternative, that this Court would not
consider the painful ordeal that Irick faces sufficiently
torturous to violate the Eighth Amendment. No. 18–183–
II(III), at 9, 21–22. Thereafter, the Tennessee Supreme
Court refused to postpone Irick’s execution on the ground
that he was unlikely to succeed in disturbing the trial
court’s no-available-alternative holding on appeal. No.
M1987–00131–SC–DPE–DD, at 4. The court did not
directly address the trial court’s second rationale, but
implied that it agreed. See id., at 5.
In Glossip v. Gross, 576 U. S. ___, this Court did impose
the “perverse requirement that inmates offer alternative
methods for their own executions.” McGehee v.
Hutchinson, 581 U. S. ___, ___ (2017) (SOTOMAYOR, J.,
dissenting from denial of application for stay and denial of
certiorari) (slip op., at 2). Without the trial court record
before me, I cannot say definitively that the Tennessee
courts are wrong that Irick failed to carry that burden.
But Irick’s contentions raise serious questions about the
courts’ conclusion.
Irick raised two different alternative methods in the
trial court: a single-drug procedure using only a drug
called pentobarbital or, alternatively, a modification of the
current procedure to omit the administration of vecuronium
bromide as a paralytic at its second step. Tennessee ar-
gued, and the trial court found, that pentobarbital was
currently unavailable to the State notwithstanding its
efforts to find a supplier. No. 18–183–II(III), at 9–19.
Irick claims, however, that the court improperly ignored
Cite as: 585 U. S. ____ (2018) 5
SOTOMAYOR, J., dissenting
indirect evidence proving pentobarbital’s availability. If
that contention is accurate, then that could constitute
legal error. Further, Irick maintains the trial court im-
properly refused to permit him to amend the pleadings to
argue that simply omitting the paralytic drug would be a
suitable alternative, see No. M1987–00131–SC–DPE–DD,
at 4–5, even though it appears such an amendment might
not have necessitated any additional testimony, see No.
M1987–00131–SC–DPE–DD (Lee, J., dissenting), at 5–6.2
The record would shed light on the validity of Irick’s con-
tentions.
If Irick did fail to plead and prove at least one available
alternative, this case further illustrates the error of this
Court’s “macabre challenge” to condemned prisoners that
they must propose an alternative method for their own
executions. Arthur, 580 U. S., at ___ (opinion of
SOTOMAYOR, J.) (slip op., at 1). But given the life-or-death
stakes of determining whether the trial court erred in
concluding that Irick failed to prove an alternative means
of execution, and because Irick makes a nonfrivolous
contention that the trial court did so err, see No. M1987–
00131–SC–DPE–DD (Lee, J., dissenting), at 4–6, I would
grant the stay to allow the state courts more time to con-
sider Irick’s claims. See Barefoot v. Estelle, 463 U. S. 880,
895 (1983).
As to the prediction that this Court would deem up to 18
minutes of needless torture anything less than cruel,
unusual, and unconstitutional, I fervently hope the state
courts were mistaken. At a minimum, their conclusion
that the Constitution tolerates what the State plans to do
to Irick is not compelled by Glossip, which did not categor-
ically determine whether a lethal injection protocol using
——————
2 Irick contends that his evidence shows that omitting the paralytic
would hasten his death and shorten his suffering. Application for Stay
of Execution 12, 16.
6 IRICK v. TENNESSEE
SOTOMAYOR, J., dissenting
midazolam is a constitutional method of execution. See
Arthur, 580 U. S., at ___ (opinion of SOTOMAYOR, J.) (slip
op., at 12). Glossip’s majority concluded only that, based
on the evidence presented in that case, there was no clear
error in the District Court’s factual finding that midazo-
lam was highly likely to prevent a person from feeling
pain. Ibid. (citing Glossip, 576 U. S., at ___ (slip op., at
16)). As noted, the trial court here came to a different
factual conclusion based on a different factual record, as
have others. See McGehee, 581 U. S., at ___ (opinion of
SOTOMAYOR, J.) (slip op., at 2) (noting a district court’s
“well-supported finding that midazolam creates a substan-
tial risk of severe pain”); Otte v. Morgan, 582 U. S. ___
(2017) (SOTOMAYOR, J., dissenting from denial of applica-
tion for a stay and denial of certiorari) (similar).
If it turns out upon more sober appellate review that
this case presents the question, I would grant certiorari to
decide the important question whether the Constitution
truly tolerates executions carried out by such quite possi-
bly torturous means.
* * *
In refusing to grant Irick a stay, the Court today turns a
blind eye to a proven likelihood that the State of Tennes-
see is on the verge of inflicting several minutes of tor-
turous 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. No. M1987–00131–SC–DPE–DD (Lee, J., dissent-
ing), at 1. 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. I dissent.