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Cite as: 585 U. S. ____ (2018) 1 

SOTOMAYOR, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 18A142 

BILLY RAY IRICK v. TENNESSEE 

ON APPLICATION FOR STAY 

[August 9, 2018] 

The application for stay of execution of sentence of death 

presented to JUSTICE KAGAN and by her referred to the 

Court is denied. 

JUSTICE SOTOMAYOR, dissenting from the denial of the 

application for stay. 

Tonight the State of Tennessee intends to execute Billy 

Ray Irick using a procedure that he contends will amount 

to excruciating torture. During a recent 10-day trial in the 

state court, medical experts explained in painstaking 

detail how the three-drug cocktail Tennessee plans to 

inject into Irick’s veins will cause him to experience sensations of drowning, suffocating, and being burned alive

from the inside out. Abdur’Rahman v. Parker, No. 18– 

183–II(III) (Ch. Ct. Davidson Cty., Tenn., July 26, 2018),

p. 21, and n. 7 (generally crediting the testimony of plaintiffs’ experts); Application for Stay of Execution 8–11

(summarizing that testimony); see also Arthur v. Dunn, 

580 U. S. ___, ___ (2017) (SOTOMAYOR, J., dissenting from

denial of certiorari) (slip op., at 2). The entire process will 

last at least 10 minutes, and perhaps as many as 18, 

before the third drug (potassium chloride) finally induces

fatal cardiac arrest. No. 18–183–II(III), at 25–26. Meanwhile, as a result of the second drug (vecuronium bromide), Irick will be “entirely paralyzed, unable to move or 

scream.” Arthur, 580 U. S., at ___ (opinion of SOTOMAYOR, 

J.) (slip op., at 2). 
 

2 IRICK v. TENNESSEE 

SOTOMAYOR, J., dissenting 

But Irick may well be aware of what is happening to

him. 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. Application

for Stay of Execution 8–11; No. 18–183–II(III), at 21; see 

also Arthur, 580 U. S., at ___–___ (opinion of SOTOMAYOR, 

J.) (slip op., at 3–4) (describing similar evidence in that

case). If the drug indeed fails, the consequences for Irick

will be extreme: 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.

The State does not appear to have rebutted meaningfully any of this evidence.1 See No. 18–183–II(III), at 21, n. 7 

—————— 

1 I say “appear,” and give only a general description of the evidence

apparently introduced at trial, because in the rushed context of this

emergency application, the trial record is not before this Court. I 

therefore rely on the state courts’ orders and the parties’ filings to 

discern what that record is likely to show.

The application comes to this Court in a hurried posture because 

Tennessee first adopted its current midazolam-based protocol only in 

January of this year. No. M1987–00131–SC–DPE–DD (Tenn., Aug. 6, 

2018), p. 2. Irick, along with 32 coplaintiffs also under sentence of 

death, promptly challenged it. Ibid. With Irick’s August 9 execution

date looming, the parties and the court brought this complex case to

trial in a matter of months. See ibid. The trial court issued its decision 

on July 26, Irick filed a notice of appeal and moved to vacate his execution date on July 30, and a divided Supreme Court of Tennessee denied

Irick’s motion August 6. Id., at 3, 6. In the meantime, the Tennessee 

Court of Appeals issued an order advising that it would not have 

sufficient time to consider the issues raised by Irick’s appeal before his

scheduled execution. Abdur’Rahman v. Parker, No. M2018–01385– 

COA–R3–CV (July 30, 2018). 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. No. 
 

Cite as: 585 U. S. ____ (2018) 3 

SOTOMAYOR, J., dissenting 

(“The Defendants’ two experts, while qualified, did not 

have the research knowledge and [e]minent publications

that Plaintiffs’ experts did”). As noted above, the trial court 

credited the evidence put on by Irick and his co-plaintiffs, 

finding that they “established that midazolam does not 

elicit strong analgesic [i.e., pain-inhibiting] effects,” and 

that therefore Irick “may be able to feel pain from the

administration of the second and third drugs.” Id., at 21. 

Those are the drugs that will paralyze him and create 

sensations of suffocation and of burning that “‘may well be 

the chemical equivalent of being burned at the stake’” 

before eventually stopping his heart. Arthur, 580 U. S., at 

___ (opinion of SOTOMAYOR, J.) (slip op., at 2) (quoting 

Glossip v. Gross, 576 U. S. ___, ___ (2015) (SOTOMAYOR, J., 

dissenting) (slip op., at 2)). Accounts from other executions carried out using midazolam lend troubling credence

to the trial court’s finding. See No. 18–183–II(III), at 28

(noting testimony describing inmates’ “grimaces, clenched

fists, furrowed brows, and moans” during lethal injection 

executions, including by use of midazolam); Glossip, 576 

U. S., at ___ (SOTOMAYOR, J., dissenting) (slip op., at 19– 

20).

Given the Eighth Amendment’s prohibition on “cruel

and unusual punishments,” one might think that such a

finding would resolve this case in Irick’s favor. And to 

stay or delay Irick’s execution, the Tennessee Supreme

Court needed only to conclude that it is likely (not certain) 

that Irick can persuade an appellate court that his claim 

has merit. See Tenn. Sup. Ct. Rule 12(4)(E) (2017); No.

M1987–00131–SC–DPE–DD, at 3. 

But the Tennessee Supreme Court did not find any such

likelihood and declined to postpone Irick’s execution to 

allow appellate review of his claims. Id., at 3–5. The 

—————— 

M1987–00131–SC–DPE–DD (Tenn., Aug. 6, 2018) (Lee, J., dissenting), 

p. 4). 
 

 

4 IRICK v. TENNESSEE 

SOTOMAYOR, J., dissenting 

court instead effectively let stand the trial court’s order,

which held that Irick’s extensive and persuasive evidence 

describing the ordeal that awaits him raised no constitutional concerns. The trial court offered two independent 

reasons for its holding: first, that Irick had not proven that 

another, less painful method of killing him was available 

to the State; and second, even assuming Irick had proven a 

readily available alternative, that this Court would not 

consider the painful ordeal that Irick faces sufficiently

torturous to violate the Eighth Amendment. No. 18–183–

II(III), at 9, 21–22. Thereafter, the Tennessee Supreme

Court refused to postpone Irick’s execution on the ground

that he was unlikely to succeed in disturbing the trial 

court’s no-available-alternative holding on appeal. No.

M1987–00131–SC–DPE–DD, at 4. The court did not 

directly address the trial court’s second rationale, but

implied that it agreed. See id., at 5. 

In Glossip v. Gross, 576 U. S. ___, this Court did impose

the “perverse requirement that inmates offer alternative 

methods for their own executions.” McGehee v. 

Hutchinson, 581 U. S. ___, ___ (2017) (SOTOMAYOR, J., 

dissenting from denial of application for stay and denial of 

certiorari) (slip op., at 2). Without the trial court record 

before me, I cannot say definitively that the Tennessee 

courts are wrong that Irick failed to carry that burden. 

But Irick’s contentions raise serious questions about the 

courts’ conclusion. 

Irick raised two different alternative methods in the 

trial court: a single-drug procedure using only a drug

called pentobarbital or, alternatively, a modification of the

current procedure to omit the administration of vecuronium

bromide as a paralytic at its second step. Tennessee argued, and the trial court found, that pentobarbital was

currently unavailable to the State notwithstanding its

efforts to find a supplier. No. 18–183–II(III), at 9–19. 

Irick claims, however, that the court improperly ignored 
 

Cite as: 585 U. S. ____ (2018) 5 

SOTOMAYOR, J., dissenting 

indirect evidence proving pentobarbital’s availability. If 

that contention is accurate, then that could constitute 

legal error. Further, Irick maintains the trial court improperly refused to permit him to amend the pleadings to

argue that simply omitting the paralytic drug would be a

suitable alternative, see No. M1987–00131–SC–DPE–DD, 

at 4–5, even though it appears such an amendment might 

not have necessitated any additional testimony, see No. 

M1987–00131–SC–DPE–DD (Lee, J., dissenting), at 5–6.2 

The record would shed light on the validity of Irick’s contentions. 

If Irick did fail to plead and prove at least one available

alternative, this case further illustrates the error of this 

Court’s “macabre challenge” to condemned prisoners that 

they must propose an alternative method for their own 

executions. Arthur, 580 U. S., at ___ (opinion of 

SOTOMAYOR, J.) (slip op., at 1). But given the life-or-death 

stakes of determining whether the trial court erred in

concluding that Irick failed to prove an alternative means 

of execution, and because Irick makes a nonfrivolous 

contention that the trial court did so err, see No. M1987– 

00131–SC–DPE–DD (Lee, J., dissenting), at 4–6, I would 

grant the stay to allow the state courts more time to consider Irick’s claims. See Barefoot v. Estelle, 463 U. S. 880, 

895 (1983).

As to the prediction that this Court would deem up to 18 

minutes of needless torture anything less than cruel,

unusual, and unconstitutional, I fervently hope the state 

courts were mistaken. At a minimum, their conclusion 

that the Constitution tolerates what the State plans to do 

to Irick is not compelled by Glossip, which did not categorically determine whether a lethal injection protocol using 

—————— 

2 Irick contends that his evidence shows that omitting the paralytic 

would hasten his death and shorten his suffering. Application for Stay 

of Execution 12, 16. 
 

 

6 IRICK v. TENNESSEE 

SOTOMAYOR, J., dissenting 

midazolam is a constitutional method of execution. See 

Arthur, 580 U. S., at ___ (opinion of SOTOMAYOR, J.) (slip 

op., at 12). Glossip’s majority concluded only that, based 

on the evidence presented in that case, there was no clear 

error in the District Court’s factual finding that midazolam was highly likely to prevent a person from feeling 

pain. Ibid. (citing Glossip, 576 U. S., at ___ (slip op., at 

16)). As noted, the trial court here came to a different 

factual conclusion based on a different factual record, as 

have others. See McGehee, 581 U. S., at ___ (opinion of 

SOTOMAYOR, J.) (slip op., at 2) (noting a district court’s

“well-supported finding that midazolam creates a substantial risk of severe pain”); Otte v. Morgan, 582 U. S. ___ 

(2017) (SOTOMAYOR, J., dissenting from denial of application for a stay and denial of certiorari) (similar). 

If it turns out upon more sober appellate review that

this case presents the question, I would grant certiorari to

decide the important question whether the Constitution

truly tolerates executions carried out by such quite possibly torturous means. 

* * * 

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. I cannot in 

good conscience join in this “rush to execute” without first 

seeking every assurance that our precedent permits such a 

result. No. M1987–00131–SC–DPE–DD (Lee, J., dissenting), at 1. 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. I dissent.