(CN) –The U.S. Supreme Court denied the last appeal of a 51-year-old who raped and murdered a 7-year-old girl just hours before Tennessee was scheduled to execute him – but not before Associate Supreme Court Justice Sonia Sotomayor expressed her dissatisfaction over what she called a “rush to execute.”
Tennessee scheduled Billy Ray Irick’s execution by a controversial method of lethal injection at Riverbend Maximum Security Institution in Nashville at 7 p.m. Thursday. Governor Bill Haslam declined to intervene, and the Tennessee Supreme Court also denied a stay of execution. Irick ate his last meal of a burger, onion rings and a Pepsi at 3 p.m. By 7:48 p.m., he was dead.
“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,” Sotomayor wrote in her six-page dissent to the majority opinion.
On Tuesday, Irick’s lawyers made a last appeal to the high court arguing that midazolam – the first drug of the three-drug mixture Tennessee plans to use as its capital punishment protocol – does not provide enough pain relief or would not put Irick in a deep enough coma for the procedure to be humane.
The second drug, vecuronium bromide, would paralyze him before the potassium chloride administered minutes later would stop his heart. During that process, Irick’s lawyers said, Irick could experience the sensations of being burned alive, suffocating and drowning.
Other executions using the drug have resulted in inmates gasping for breath and convulsing, sometimes for hours, before death.
“In refusing to grant Irick a stay,” Sotomayor wrote, “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.”
This is not the associate justice’s first disapproval of an execution. She also dissented to two Florida executions in April.
If the Supreme Court had issued a stay, it would have allowed Irick to participate in an appeal of a Tennessee case challenging the use of midazolam in the state’s executions.
Noting that she did not have the full record of that case before her, Sotomayor wrote, “The State does not appear to have rebutted meaningfully any of this evidence.”
In that case, Davidson County Chancery Court Judge Ellen Hobbs Lyle ruled against the 33 plaintiffs – including Irick – because they did not propose an execution alternative to the three-drug procedure that Tennessee plans to use.
“The inmate must also make a claim in the lawsuit he files and must prove at trial in his case that there is a known and available method to execute him that, in comparison to the State’s execution method, significantly reduces a substantial risk of pain,” Lyle wrote in her decision.
Proving that the state’s execution method is painful, the judge wrote, is not enough to stop it.
About half a dozen states have used midazolam in their executions, including Florida, Alabama and Ohio, according to the Death Penalty Information Center.
After the execution, Kelley Henry, one of Irick’s lawyers, issued a statement saying witnesses of the execution saw Irick gulping, coughing and his stomach moved up and down.
“This means that the second and third drugs were administered even though Mr. Irick was not unconscious,” Henry said in an email. “The descriptions also raise troubling questions about the state’s attempt to mask the signs of consciousness including by taping down his hands which would have prevented the witnesses from observing the failure of the midazolam.”
Many of the autopsies of inmates who have died by a lethal injection procedure utilizing midazolam showed that the condemned show signs in their lungs of respiratory distress.
On the day of the execution, Irick filed a lawsuit against Tennessee’s Chief Medical Examiner Feng Li in Davidson County Chancery Court seeking to prevent him from performing an autopsy on Irick. The autopsy, Irick said, would violate his religious beliefs.