Justice Sonia Sotomayor. Credit: Jason Doiy/ ALM

Justice Sonia Sotomayor, sharply dissenting from an execution order on Thursday, said if the law allowed a Tennessee inmate to die despite evidence of “horrific” pain during the process, the United States has “stopped being a civilized nation and accepted barbarism.”

Sotomayor criticized an unsigned order that denied a stay of execution to Billy Ray Irick. The inmate had challenged the three-drug cocktail the state planned to use in the Thursday night execution. He argued the drugs would result in excruciating torture before killing him.

Medical experts during a 10-day trial testified that the drug cocktail would cause “sensations of drowning, suffocating, and being burned alive from the inside out,” Sotomayor said. “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,” she added.

Because of the “rushed context” of Irick's emergency application for a stay, the trial record was not before the justices, according to Sotomayor. And, she wrote: “Given the precipitous pace of proceedings, 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.”

Sotomayor said she would grant Irick's stay request to allow the state courts more time to consider his claims. Irick was sentenced to death for raping and killing a 7-year-old girl named Paula Dyer.

“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,” she wrote. “I cannot in good conscience join in this 'rush to execute' without first seeking every assurance that our precedent permits such a result.”

The trial court ruled against Irick and 32 other inmates challenging the drug protocol after finding Irick had not proven that a less painful method of executing him was available to the state and that, even assuming an alternative was available, the U.S. Supreme Court would not find the three-drug cocktail sufficiently cruel to violate the Eighth Amendment.

The “less painful alternative” was a new requirement imposed by the high court in Glossip v. Gross, a 5-4 decision by Justice Samuel Alito Jr. Sotomayor described the requirement as “perverse” in making inmates offer alternative methods for killing themselves. Irick claimed he raised two different alternative methods in the trial court.

Sotomayor, with Justice Stephen Breyer, often has raised questions about the application of the death penalty. In 2016, Sotomayor wrote a lengthy dissent that said the court should have further examined whether a Washington state defendant's lawyer provided effective assistance.

Sotomayor's dissent is posted here:

 

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