A majority of the Tennessee Supreme Court has denied death row inmate, Billy Ray Irick, a stay of execution pending the resolution of his appeal of an unsuccessful challenge to the State’s lethal injection protocol. Mr. Irick is scheduled to be executed on Thursday, Aug. 9.
Irick was sentenced to death following his 1986 convictions for the rape and murder of a seven-year-old child. Following Mr. Irick’s exhaustion of all levels of appellate review, the Tennessee Supreme Court set his execution date for Dec. 7, 2010. Irick, however, was granted a stay based upon his claim that he was mentally incompetent to be executed. The Court rescheduled his execution for Oct. 7, 2014, after affirming a trial court’s determination that Irick was mentally competent to be executed.
In 2015, Irick’s execution again was stayed following the filing by Irick and other death row inmates of a lawsuit claiming that the Tennessee Department of Correction’s (“TDOC”) single-drug lethal injection protocol using pentobarbital was unconstitutional. On March 28, 2017, the Tennessee Supreme Court upheld the single-drug protocol as constitutional. In January 2018, after the United States Supreme Court refused to hear the case involving the one-drug protocol, the Tennessee Supreme Court again rescheduled Irick’s execution, this time for Aug. 9.
Around this same time in January 2018, TDOC adopted a three-drug lethal injection protocol as an alternative method of execution. In February 2018, Irick and 32 other death row inmates filed a constitutional challenge to this three-drug protocol. While the inmates’ case was pending, TDOC eliminated the single-drug lethal injection alternative, rendering the three-drug protocol as the only available lethal injection execution method in Tennessee.
On July 26, the chancery court in Davidson County dismissed the inmates’ complaint, and the plaintiffs filed a notice of appeal on July 30. Also on July 30, Irick filed a motion with the Tennessee Supreme Court to vacate the Court’s order setting his Aug. 9, execution date.
In its per curiam order filed Aug. 6, a majority of the Court denied Irick’s Motion to Vacate Execution Date. The Court pointed out a 2015 amendment to the Rules of the Tennessee Supreme Court governing death penalty matters that requires a death row inmate to “prove a likelihood of success on the merits” of collateral litigation to be granted a stay of an execution date while that collateral litigation is pending. This is the first death penalty case in which the Court has applied this revised rule.
Based upon previous federal and state court cases, to prevail on a claim that a particular method of execution amounts to cruel and unusual punishment, an inmate must establish both that the method in question presents an imminent risk of serious illness and needless suffering and that a feasible, readily implemented alternative method of execution exists that will significantly reduce a substantial risk of severe pain. Applying the facts of this case to these two elements, the Court first determined that Irick had failed to prove a likelihood of success as to the existence of a feasible, readily implemented alternative method of execution.
Although the Court could have ruled against Irick on this basis alone, it also noted other previous decisions from the United States Supreme Court and the Tennessee Supreme Court upholding almost identical and similar three-drug protocols. Thus, the proof before the Court demonstrated that Irick also is unlikely to prevail on the element that requires him to prove that the method in question presents an imminent risk of serious illness and needless suffering. As a result, the Court concluded that Irick failed to establish a likelihood of success on his constitutional challenge to the three-drug protocol. Accordingly, the Court denied Irick’s motion to stay the Aug. 9, 2018 execution date.
Justice Sharon G. Lee dissented and would have granted Irick a stay to prevent the State from executing him before his appeal could be heard.
The dissent said, "Unless the execution date is reset, Irick – unlike the other 32 death row inmates who also challenged the State’s method of execution – will not live to see whether the trial court’s decision was correct. The dissent notes that since 2010, TDOC has repeatedly changed its lethal injection protocol, resulting in litigation and delays. Just this year, TDOC has changed the protocol twice. The last change to the protocol was on July 5, only four days before the chancery court heard the case. Justice Lee concluded, based on the limited information available to the Court, that Mr. Irick had shown a likelihood of success on the merits in his appeal. For example, the chancery court ruled that the inmates failed to prove that pentobarbital was available to TDOC as a feasible, readily implemented alternative execution drug. Yet Texas and Georgia have used pentobarbital in 10 executions so far this year, and Texas has eight more executions set this year using pentobarbital. As to imminent risk of serious illness and needless suffering presented by the protocol, the chancery court made a specific finding that expert testimony introduced by the inmates showed that Midazolam does not elicit strong analgesic effects and that inmates may be able to feel pain from the administration of the second and third drugs in the protocol during execution. This is the first time any court in Tennessee has considered a lethal injection protocol using Midazolam. Although courts in other states have upheld this method, each case should be decided on its own merits and facts."
The dissent concluded that the harm to the State from briefly delaying the execution until after appellate review would be minimal, if any, but the harm to Irick from an unconstitutional execution would be irreparable.