Justice Sonia Sotomayor concludes her dissent in Irick v. Tennessee with the kind of rhetorical flourish that is rarely seen in judicial opinions. “If the law permits this execution to go forward in spite of the horrific final minutes that” the inmate at the heart of this case is likely to experience, “then we have stopped being a civilized nation and accepted barbarism.”
The justice reaches this conclusion after her Court effectively ruled on Thursday that Billy Ray Irick, a death row inmate, could be tortured to death. This result is not surprising — the issue at stake in Irick largely tracks the issues presented in Glossip v. Gross, a 2015 decision upholding Oklahoma’s use of a drug cocktail that almost certainly subjects death row inmates to excruciating pain as their paralyzed body slowly dies.
The state of Tennessee, like Oklahoma, uses a three-drug cocktail in its executions. The first drug, midazolam, is supposed to prevent inmates from feeling pain. The second drug paralyzes the inmate, while the third eventually causes a fatal heart attack.
Yet there is considerable evidence that midazolam is not an effective painkiller, even when inmates receive enormous doses of the drug. As Sotomayor noted during the 2015 argument in Glossip, an Arizona inmate who received the three-drug cocktail spent two hours in apparent agony despite being given a massive dose of midazolam.
Without an effective painkiller, Sotomayor writes in Irick, inmates who receive the three-drug cocktail are likely to experience “sensations of suffocation and of burning that ‘may well be the chemical equivalent of being burned at the stake.’”
Sotomayor’s dissent also criticizes one of the most ghoulish aspects of Glossip. In that 5-4 decision, Justice Samuel Alito wrote for the Court that “there must be a [constitutional] means of carrying” out a death sentence.
Thus, inmates challenging the method of their execution must comply with what Sotomayor describes as “the ‘perverse requirement that inmates offer alternative
methods for their own executions.’” Glossip effectively conscripts death penalty lawyers into their clients’ executions, requiring those advocates to suggest alternative ways to kill the client.
Sotomayor’s dissent was joined by no other justice, and the other members of the Court did not announce how they voted in Irick. Given the Court’s present makeup, however, Mr. Irick’s request for a stay of execution was likely to be futile even in the absence of Glossip.
For the moment, the Court is down to just eight members — retired Justice Anthony Kennedy, who sometimes voted with the Court’s liberals in death penalty cases, is no longer around to cast those votes. Staying an execution requires a majority vote, and, even in the most optimistic scenario for Irick, he was unlikely to secure more than four votes.
In this sense, Irick is likely a harbinger of what is to come in future death penalty cases. If Judge Brett Kavanaugh or another Trump appointee joins the Supreme Court, it is likely that there will be five consistent votes in favor of executions. A majority of the Court will welcome the barbarism Sotomayor describes, and with enthusiasm.