Seaton: Billy Ray’s Barbaric Demise

A man named Billy Ray Irick died this week in Tennessee. Irick’s passing was no surprise to those familiar with him, as he’d been sentenced to die by a jury for the brutal rape and murder of a seven-year-old girl back in 1986. What’s surprising is the blind eye turned to Irick’s execution method: a three drug lethal injection that potentially tortured Irick for up to 18 minutes.

Tennessee’s lethal injection procedure involves administration of three drugs: midazolam, which is supposed to act as a sedative rendering the subject unable to feel pain, vecuronium bromide, a muscle relaxer, and a final dose of compound potassium chloride which stops the heart. Adopted in January, the procedure sounds, in theory, as if it’s a humane way to end someone’s life.

But it’s only theoretically humane because there’s a chance midazolam doesn’t work as well as people expect. In fact, there’s enough of a concern over the efficacy of midazolam that several death row inmates are in a class action lawsuit claiming the midazolam lethal injection protocol constitutes cruel and unusual punishment.

The concerns fell on deaf ears all the way up to the United States Supreme Court, which denied a stay of Irick’s execution. Justice Sotomayor wasn’t going to let this go without having her say. In a six page dissent, Justice Sotomayor blasted the Volunteer State’s decision to end Irick’s life in a manner described as “the chemical equivalent of being burned at the stake.”

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.

So the trial court hearing the case gave Irick and the other plaintiffs credit that midazolam might not work as well as people wanted to believe it did. It also listened to anecdotal testimony from other executions that indicated those subject to the three-drug protocol did suffer intense pain during their deaths. And despite all this, the trial court’s ruling was “no big deal.”

If Irick didn’t get the three-drug protocol, his other option was to pick a method of death that would be available to the state. In this macabre situation, Irick suggested either one injection of pentobarbital or the omission of vercuronium bromide from the injection protocol. The State claimed pentobarbital was unavailable, and shrugged with regards to omitting the second of the three drugs. Justice Sotomayor was not impressed with this predicament.

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…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.

Billy Ray Irick was not a nice person. He raped and murdered a seven-year-old girl who knew and trusted him. That does not excuse us as a society for turning a blind eye to a procedure that subjects a person to excruciating pain and torture in their final minutes. We can and should be better, because we know more humane methods exist. And despite our innate desire for revenge, to see that bastard get his comeuppance, our moral, rational selves know his suffering doesn’t alleviate the suffering of Paula Dyer or her family.

Perhaps Justice Sotomayor’s words ring a little more true than usual. Maybe in turning a blind eye to Irick’s last moments on this life, we really have accepted barbarism over the civilized rule of law.

UPDATE: On a cursory research of the web, Irick’s request of a single injection of pentobarbital would have resulted in a far quicker death with fewer chemicals and one injection. The State’s response that pentobarbital was not available is asinine bullshit, as the drug is used often for shelter euthanasia.

Tennessee treated Billy Ray Irick worse than a stray dog when he died.

36 comments on “Seaton: Billy Ray’s Barbaric Demise

  1. Dan

    1. incessant litigation against Lethal Injection Protocol 1.
    2. Supremes finally rule Protocol 1 is constitutional.
    3. Media blitz against Protocol 1.
    4. Drug companies cave.
    5. States develop Protocol 2.
    6. Go to step 1.

    Nope, not a lot of sympathy for the guy; he deserved far worse than he got. Executions should be carried out as humanely as possible, but that’s primarily for the sake of the rest of society.

    Reply
    1. SHG

      The point isn’t about sympathy for the devil, but that the measure of humane society isn’t the worst killer. He was awful. We are better than him.

      Reply
      1. B. McLeod

        We aren’t. People are murdering each other like rats in the streets of Chicago, while our courts have put the death penalty, as a punishment, on a one-way track to elimination. As the death penalty becomes increasingly ineffective (30 years to be carried out, in this case), people will increasingly emulate the Chicago gangs, who have simply gone back to taking their vengeance in the street (a practice the state’s one-time commitment to the death penalty was designed to displace). There won’t be fewer deaths, but I guess the moral among us can take solace in the premise that the state is not involved in the slaughter.

        Reply
    2. CLS

      “He deserved far worse than he got” is a prime example of embracing barbarism. You don’t have to have sympathy for Billy Ray Irick to understand that a procedure that leaves the condemned to eighteen minutes of suffering is cruel and unusual punishment, and therefore outside what the law considers acceptable.

      And yes, executions should be as humanely as possible because society knows, and you know, at heart causing a person to suffer in their last moments of life doesn’t alleviate the suffering of those who are hurt or who lost someone due to a horrendous crime. Especially when one injection would do the job over three.

      Reply
      1. Ross

        Another alternative is to use nitrogen asphyxiation, which is apparently painless and very inexpensive. Every year, around 10 people die accidentally from nitrogen asphyxiation in industrial settings, and with no indication of any pain, as nitrogen displaces both oxygen and carbon dioxide, so the body doesn’t initiate the suffocation response that’s driven by high CO2 levels. Oklahoma now allows for the use of nitrogen in executions.

        Reply
        1. Patrick Maupin

          I researched nitrogen asphyxiation quite heavily for potential use in suicide (euthanasia). The patient preferred to (and did) eventually die naturally, but my research convinced me that (a) this is by far the best way to go if you do want to speed up death (it is what I plan to use on myself if I wind up with an incurable disease that is too painful to live with), and (b) the death penalty opponents know this, and fight really hard against states legalizing nitrogen as an execution method.

          It is in their interest for people like Billy Ray to die a horrible death, so they can point and say how inhumane executions are, and nitrogen asphyxiation is very peaceful. Also, if this is allowed, it would be impossible to boycott companies supplying the (widely used) execution materials, and even if someone succeeded in this, any half-competent state employee could build a nitrogen extractor. Finally, it’s not dangerous (in a well-ventilated room) to any bystanders, like other gas-based execution methods are.

          Reply
        2. CLS

          The AVMA doesn’t even allow for nitrogen gas in euthanizing cats and dogs, because evidence exists suggesting there’s a possibility the animals can suffer horribly before death. If we won’t do it with a lower life form, we shouldn’t use it on humans.

          Reply
          1. Patrick Maupin

            Many other animals can detect the lack of oxygen. Humans don’t detect the lack of oxygen — they detect the presence of CO2. So something could be inhumane for a “lower” animal, but perfectly humane for people.

            CO poisoning happens a lot because it’s unnoticeable. THe human body does not react to the fact that it is not being oxygenated properly, so this is not stressful. But, of course, CO would potentially be very dangerous for bystanders. Nitrogen doesn’t have this drawback, except in very close quarters.

            Reply
      2. Dan

        ‘“He deserved far worse than he got” is a prime example of embracing barbarism. ‘

        Not at all–it’s a recognition that retribution is one of the proper goals of the criminal justice system (not the only goal, to be sure, but a valid one), and a just punishment for the rape and murder of a 7-year-old girl is something worse than a calm, peaceful, painless death. Or even a painful death (assuming it actually is, since that fact is by no means established) that lasts 18 minutes. The reason we don’t torture people to death (well, aren’t supposed to) isn’t that they don’t deserve it–some of the condemned assuredly do. It’s to protect, to a degree, our humanity.

        If another method was legally available (including suitable drugs that could be legally used for this purpose), and would have carried less risk of undue suffering, then yes, I’d agree it should have been used.

        Reply
        1. Anshu Sharma

          Retribution is not a valid goal of the criminal justice system at all. The two goals are justice-seeing that the wronged can hold those who did wrongdoing accountable-and security-preventing future wrongdoing. Pursuing retribution jeopardizes both and makes a mockery of individual rights, liberties, and dignities.

          Reply
          1. SHG

            You may not like it, but retribution is one of the five legitimate purposes of sentencing:

            1. General deterrence
            2. Specific deterrence
            3. Isolation
            4. Rehabilitation
            5. Retribution

            Here’s the deal: Don’t spew whatever idiocy pops into your head and nobody will call you a blithering idiot. You’re welcome.

            Reply
            1. David

              Isn’t this the place where she comes back and tells you what a meanie you are and the law is whatever she feels it should be?

            2. Anshu Sharma

              I did some research and see what you mean: retribution is recognized as one of the purposes of sentencing. I don’t have a law degree, so perhaps I should have done more research here.

              I stand by the principle that retribution should not be a valid goal in criminal justice-it sounds too much like vengeance to me. One example: right now, family members and friends are being prosecuted for murder because they helped friends get drugs: [Ed. Note: Link deleted per rules.]

              I feel these prosecutions don’t provide deterrence or rehabilitation, that they provide isolation that is counter-productive, and that the retribution is misplaced. And, in general I feel that retribution alone does not make a punishment valid.

            3. SHG

              This is a law blog (as in a blog for lawyers and judges), not a blog for people who have no clue what they’re talking about to spew nonsense because that’s what they feel the law should be. No one cares how you feel. No one cares what shit pops into your ignorant head that you feel is so valuable that it needs to show up on my bandwidth to make people stupider. And much as it’s nice that you’ve done “some research,” you remain the most ignorant person in the room, and too narcissistic to grasp that you have nothing to contribute.

              If you need to spew, do it elsewhere.

            4. Anshu Sharma

              As the stories you post about show, law affects all of us, regardless of whether or not we have a law degree. I didn’t see a post or policy saying that only JDs could contribute, and I’m not going to apologize for honestly and respectfully putting forth my ideas, although I do apologize for being a bit general in my first post.

              I stand by my point: retribution by itself should not justify a penalty. You can argue with me on that, just ignore me, or you can level ad hominem insults at me.

            5. SHG

              Ah, you’re just not getting this at all. The problem isn’t that you’re not a JD, but that ignorance doesn’t entitle you to enjoy my bandwidth to express your vapid opinion. I wish you the best at reddit. Bye.

            6. losingtrader

              Don’t spew whatever idiocy pops into your head and nobody will call you a blithering idiot. You’re welcome.

              This gets added to the SHGism list

          2. Frank

            One of the reasons why I only approve of the death penalty at the time and scene of the crime, preferably at the hands of the intended victim. But I’m outvoted by the folks who want to watch someone swing.

            Reply
    3. cthulhu

      “Executions should be carried out as humanely as possible, but that’s prime for the sake of the rest of society.”

      I disagree. If we’re going to have capital punishment (which I strongly disagree with, but what the hey), then there are two conflicting interests: the State has an interest in the death penalty being as strong a deterrent as possible, while at the same time, minimizing the cruelty to the condemned. These two principles are diametrically opposed.

      My proposal to accommodate these two principles is that we should conduct executions in the glare of the public eye (e.g., prime time television), in a quick, sure, but brutal manner; e.g., firing squad, hanging, guillotine, etc. Yes the one executed will feel pain, but the integral over time will surely be less than electrocution or lethal injection; and all of us will have the opportunity thrust in our faces to learn just what the death penalty is all about.

      (Yeah, no snarky comment today; this topic takes it out of me.)

      Reply
      1. Patrick Maupin

        Seeing cruelty makes people more cruel, not less. It does not generally dissuade them from doing bad things, so that part of your premise is wrong.

        But your purported sympathy for the executed is completely belied by your “solution — If you disagree with capital punishment, but it happens anyway, and you use politics to force particular execution methods to be used, simply to further your own goals of getting society to stop capital punishment, that’s only really ethical if it’s your own execution we are discussing.

        If we’re going to execute people, give them a buffet of methods and let them decide. If someone wants to point out how inhumane it is by choosing firing squad on national TV, let them. If someone wants to die peacefully, let them. Let them have some agency over their last few minutes; it’s the only true agency most of them will have had for decades.

        Reply
      2. CLS

        I’d add to Patrick’s response that broadcasting executions on prime time television would violate all manner of FCC broadcasting laws, requiring more legislation and government intervention. Not exactly my cup of tea, thank you.

        Plus there’s something unpalatable about the possibility of kids being exposed to a televised hanging.

        There’s some merit in giving those who are going to be executed a say in how they’re going out. It would give them some agency in their final moments, which I think is definitely a better step in a bad situation.

        Reply
        1. zoe

          Pay-Per-View, with the proceeds going to the victims or surviving family members.

          Also, why not just perform the execution with a huge bolus of heroin or fentanyl. You know the crime labs have stockpiles of confiscated drugs and they know the purity.

          Reply
          1. CLS

            You raise an interesting proposition with the idea of allowing viewings of executions on PPV. I’d question the mental fitness of someone who’d be willing to pay to watch a person die, though.

            And given past experiences with crime labs and their ability to test “purity,” I’m not so sure your proposed route is the best method possible for ending a life.

            Reply
        2. Hunting Guy

          That horse has left the barn.

          Executions are all over the web.

          Personally, I favor keeping them alive until someone on the outside needs an organ.

          (Yeah, Larry Niven covered the problems with that.)

          Reply
      3. B. McLeod

        When murder courts were established in the agora, a prime consideration was to displace the blood feud with a state-administered response that would be more conducive to the public peace, and less disruptive to society at large. In essence, “vengeance is mine,” sayeth the state. A more efficient and public execution process could operate in furtherance of the policy goal of dissuading private revenge killings. It could be done as the Chinese do it (single bullet at the base of the skull) and the condemned person would suffer no pain, due to the severing of the spinal cord.

        Reply
  2. Erik H

    Every day, literally thousands of people undergo painless general anesthesia in surgery, in which a bunch of highly trained doctors try hard to KEEP them from dying while unconscious. It strains credulity to imagine that we can’t manage to make people unconscious before we kill them, if we want to.

    Torture during death is completely horrific. If you read about another country doing it it would be horrific then too, but it’s even worse when it’s the USA.

    I do not understand how this could be acceptable. I suspect this is, as noted, a (inappropriate) reaction to other protests, a la “you told us we couldn’t use XXX method, and you thought we would have to stop killing people, guess we showed you”. But that’s warlord-level BS, not USSC stuff…. I hoped.

    Reply
  3. Tim

    I was good with you right up until the update, which is “asinine bullshit.” An equally cursory search of the web as the one performed about the efficacy of pentobarbital would have also pointed out that every manufacturer of pentobarbital refuses to supply it to states for use in executions. Irick’s case is troubling enough. It didn’t need an update that makes people stupider for having read it.

    Reply
    1. SHG

      The update wasn’t to suggest that the manufacturer was willing to sell pentobarbital, but that it exists and is otherwise readily available. Withholding drugs from state for executions has been promoted as a means of ending capital punishment. The point in raising it here is that the execution was carried out anyway, without the benefit of pentobarbital resulting in Irick’s execution being torture.

      Reply
  4. B. McLeod

    I’m sure you can’t give vet medications to people. It wouldn’t be safe, you know. And we’re all on to making this look like a medical procedure, because reasons. We should just go to the Chinese method, a single bullet fired pointblank at the base of the skull, and charge the convict’s estate for the bullet.

    Reply
  5. Leo MD

    based on my medical experience there is potentially a huge range of effective doses of midazolam which is a sedative NOT an anesthetic . I know that for safety reasons I have to titrate from low doses up to where I get to the desired level of sedation so that I don’t cause a respiratory arrest and then have to resuscitate the patient
    I suspect that the protocols specify a fixed dose rather than allowing the executioner the ability to titrate the dose

    Reply
    1. LocoYokel

      Good, finally an MD I can ask this question of.

      I have heard about dosing execution drugs based on the standard factors. Would it not be better just to dose the sedatives and anesthetics at some multiple of the LD50, say 4X or higher? They are being executed anyway so why the concern about overdosing? Just give enough to ensure the effect desired and if it also happens to be a lethal dose I would think that would be a bonus in this specific circumstance.

      Reply
  6. Leo MD

    there is a wikipedia page “Lethal Injection”
    none of the protocals they survey mention titrating tdrug(s) to effect which I think is the weakness.
    there are a number of references which I have not examined

    Reply

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