Tennessee executed Billy Ray Irick on Thursday night, after the U.S. Supreme Court denied a final request to stay his execution. Convicted of the 1985 rape and murder of 7-year-old Paula Dyer, Irick, 59, is the first state inmate to be put to death since 2009. He was also the first to receive Tennessee's new and controversial three-drug cocktail.
Thursday's lethal injection was made up of compounded midazolam, used to render a person unable to feel pain during an execution, a paralytic drug called vecuronium bromide, and compounded potassium chloride for the killing agent. Potassium chloride has been described by the U.S. Supreme Court as "chemically burning at the stake."
In recent years, there have been numerous executions where witness accounts raised questions about whether the inmates were sufficiently anesthetized when the killing drugs were administered. These performances have raised questions about Midazolam's effectiveness as a sedative in executions. Thursday's application for a stay of execution followed a lower state court determination that the new combination of drugs may not be chemically appropriate.
A second concern in Irick's case, according to Robert Durham, executive director of the Death Penalty Information Center, was that Irick was mentally ill. Tennessee currently has pending legislation that, if passed, would make it illegal to apply the death penalty to a person with serious mental illness.
"It's unseemly that Irick would be executed and then the case ultimately gets resolved in his favor," Durham said.
The request to delay was referred to the U.S. Supreme Court by Justice Elena Kagan. The only noted dissent was from Justice Sonia Sotomayor; the court's order did not specify how the other justices would have voted. Irick's is the first death-penalty case that's come to the court since Justice Anthony M. Kennedy retired on July 31, which left the court shorthanded.
"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," Sotomayor wrote. The dissent echoes comments she made last year aimed at Midazolam in a case involving an Alabama inmate.
"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," Sotomayor wrote. " … 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."
Though controversial, the use of Midazolam has come before courts numerous times — and been used in multiple executions, some of them highly criticized.
In perhaps the most high-profile case, an inmate in Oklahoma grimaced and kicked during his 2014 lethal injection involving the drug. Authorities called off the execution, but he died not long after. A state investigation later blamed problems with the IV insertion. That same year, an Arizona execution using the sedative lasted for nearly two hours. Another execution that year in Ohio saw the inmate writhe and gasp for air and, in 2016, witnesses to an execution in Alabama said the inmate there coughed and heaved.
The Supreme Court heard a challenge to Oklahoma's use of Midazolam in 2015 and upheld the state's lethal injection protocol in a 5-4 decision, holding that the drug cocktail did not violate the Constitution's ban on cruel and unusual punishment. Sotomayor referenced that decision in her dissent Thursday, writing that the court did not "did not categorically determine whether a lethal injection protocol using Midazolam is a constitutional method of execution" — but instead found no error in a lower court's determination that the drug "was highly likely to prevent a person from feeling pain."
States have turned to Midazolam in recent years as they struggled to obtain the drugs needed for lethal injections, a shortage fueled in part by the objections drugmakers have to their products being used to carry out death sentences. In response to the shortage, states have turned to new and untested drug combinations or explored other execution methods.
Oklahoma announced earlier this year that it would begin using nitrogen gas rather than lethal injections in response to the shortage, while Utah previously adopted firing squads as the state's backup method of execution.
Last month, authorities in Nevada were hours away from carrying out the country's first execution using fentanyl when a judge called it off due to a challenge from Alvogen, a drug company. The firm objected to Nevada's plans to use its Midazolam, and in court filings the company listed the controversial executions in Oklahoma, Arizona and Alabama that all used the same drug.
Arkansas similarly resumed executions last year after a 12-year lull, carrying out four lethal injections in eight days. Officials said that frantic pace was necessary because their stock of Midazolam — acquired just days after the Supreme Court ruling upheld Oklahoma's protocol in 2015 — was about to expire.