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August 12, 2018

While I was on road, did others notice that we "stopped being a civilized nation and accepted barbarism"?

The question in this title of this post is my somewhat tongue-in-check reaction after getting a chance to finally read Justice Sotomayor's remarkable dissent from the denial of the application for stay in Irick v. Tennessee handed down last week.  This dissent, which assailed the Court's refusal to stay an execution that Tennessee carried out this past Thursday, concluded this way:

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.

Because no other justice joined this dissent and Irick's execution did in fact go forward around at 7:30 p.m. CDT on Thursday, August 9, 2018, it seems that last Thursday night according to Justice Sotomayor we "stopped being a civilized nation and accepted barbarism." And, notably, this local report on Irick's execution (and the crime that prompted it) reports that the execution was not completed smoothly:

The execution began later than scheduled. The blinds to the execution room lifted at 7:26 p.m., 16 minutes later than expected. Irick, with nearly shoulder-length hair, a scraggly beard and dressed in a white prison jumpsuit and black socks, was coughing, choking and gasping for air. His face turned dark purple as the lethal drugs took over.

August 12, 2018 at 11:20 PM | Permalink


Somewhere in that that billious dissent, the "wise [sic] Latina" makes reference to a "hurried posture." What a laughable joke in the context of a capital case.

Posted by: federalist | Aug 13, 2018 7:09:41 AM

@federalist: If you look at the pace of the litigation to which she was addressing her comments, it is a more than fair commentary.

From the first page of her dissent:
"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."

Posted by: John | Aug 13, 2018 12:18:22 PM

The barbarism of the death penalty in the U.S. is nothing new. Nor are the problems with lethal injection, which have been repeatedly demonstrated. Nor is the continued obliviousness of the author of this blog, who seems unable to see what is obvious. It is good to see it acknowledged.

Posted by: anon | Aug 13, 2018 6:27:11 PM

I'm also curious to hear your thoughts on whether Irick was a rush job. Sotomayor's punches on this point landed from my vantage, but I'd be curious to hear your view.

Posted by: John | Aug 14, 2018 2:03:05 AM

I assume Sotomayor will now AMEND her opinion and say she was WRONG about the several minutes of torture NOW that we KNOWN it didnt happen? and we have one less killer in our prison system. Why would we allow her lunatic lies to continue?

Posted by: DeanO | Aug 14, 2018 8:31:45 AM

The comments about the rush pace of proceedings was not a fair comment. The purpose of a stay application is to keep the lower court judgment from going into effect while an appeal is pending. By its nature, it is always filed and has to be ruled on (to have any effect) before the appellate record is complete. The burden is always on the party that lost below to include enough information (including the relevant pleadings and summaries of the significant evidence) to justify the stay. Typically, stay applications are quickly denied.

As far as the pace of the trial, plaintiffs were the party seeking an injunction to prevent the use of the new protocol. As the state courts noted, the anti-death penalty lobby has done a good job in restricting access to potential substances for use in executions. As such, delay in the proceedings has a tendency to make the case moot when the current batch of substances expires and can't be replaced. Apparently, Tennessee is on its third or fourth protocol since they set Irick for execution back in 2013.

That leaves the issue as to whether Irick did show enough likelihood of success on appeal to warrant a stay. A significant part of Justice Sotomayor's opinion focuses on the risk of pain part of Glossip. However, there are two prongs in Glossip, and the opinion does a poor job of addressing the other prong -- the availability of an alternative method. The opinion spends more time condemning this prong, then considering the merits (as the Tennessee Supreme Court had to) of that prong. One part of her attack is on the conclusion of the state courts that under state law only one alternative was properly pled. However, that is a matter of state law, and it does not take a complete record (merely the relevant pleadings) to determine if there is a viable state law claim. The second attack is on whether the trial court discounted the inmates' evidence contradicting the State's evidence on the availability of pentobarbital. However, the assessing of the credibility of different evidence is usually a matter for the trial courts, and it would not be a viable ground for appeal that the availability of pentobarbital was a disputed issue of fact. In short, while Justice Sotomayor's opinion scores some rhetorical points, it actually proves that the Tennessee Supreme Court was correct in denying the stay and is more a request that the U.S. Supreme Court revise the law on what constitutes a valid Eighth Amendment challenges and to grant a stay to permit that revision.

Posted by: tmm | Aug 14, 2018 4:49:12 PM

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