As of January 2017, there were 63 inmates on death row in Tennessee. Executions have been on hold pending a challenge by inmates to the single-dose drug protocol. Karen Grigsby / The Tennessean


Inmates condemned to die by the state have no right to a painless death. 

But Tennessee cannot torture prisoners as they are executed. 

The debate over whether the state's three-drug lethal injection method will torture a man to death is key to a trial that began Monday. 

The consequences of the trial are very real: Bill Ray Irick, a 59-year-old Knox County man convicted of the 1985 rape and murder of a 7-year-old girl, is scheduled to die Aug. 9. 

Lawyers for the Tennessee Department of Correction argue the drugs the state plans to use do not amount to "unnecessary cruelty, terror, pain or disgrace, such as being disemboweled in public, burned alive, beheaded." 

The attorneys also argue death penalty opponents are to blame for any drug problems because they pressured pharmaceutical companies into not providing states with the drugs that kill most effectively.

"Inmates challenging a state’s method of execution must meet a 'heavy burden' ... so much so that the Supreme Court has never invalidated a state’s chosen method of execution as cruel and unusual punishment," write attorneys for the state, citing a 2015 U.S. Supreme Court ruling. 

The state is relying on an unlicensed, out-of-state pharmacy to provide drugs that may not function as intended, lawyers for death row inmates argue. Even if the drugs do work as planned, there's a very high chance they result in immense pain, similar to someone drowning or dying by sarin gas. 

"(Prison officials) are causing death through poisoning. Poisoning causes extreme
pain and suffering. Using a paralytic during the poisoning causes extreme terror
and distress," write attorneys for the death row inmates. 

Both sides established their arguments in documents filed with the court ahead of Monday's start of trial. 

In the past, Tennessee used a drug called pentobarbitol in lethal injections. The Tennessee Supreme Court determined in 2017 that its use in executions is constitutional. 

However, the drug's manufacturers have largely stopped supplying it to corrections systems around the country. 

Instead, states turned to a three drug method. In theory, the first drug renders the person unconscious; the second drug stops their lungs; and the third drug stops their heart. 

The effectiveness of the first drug, midazolam, is at the heart of the debate.

Attorneys for the state have a physician who will testify in court that the drug effectively renders a person unable to feel the effects of the next two drugs. 

Several physicians testifying for the death row inmates will state the drug frequently does not prevent people from feeling pain. Additionally, attorneys will show, through an analysis of autopsies of other inmates put to death using midazolam, that the vast majority of them suffered immense pain during their executions.

The midazolam obtained by the state will also be a form of the drug known as a compound, or a pharmacy building a medication on its own.

Citing records since sealed by the court, attorneys for the death row inmates say the people supplying the state with the compounded midazolam are not licensed to supply such drugs in Tennessee. Attorneys for prison officials note their suppliers have a pending application with the state. 

Attorneys for both sides filed a flurry of motions in the weeks leading up to trial. On July 5, the state announced it had changed information on 32 pages of the 99-page lethal injection execution manual.

Those changes, largely in response to objections by attorneys for the death row offenders, include: 

  • Formally removing pentobarbital as an option for use by the state. 
  • Explicitly stating prison officials may use compounded drugs.
  • Waiting two minutes after administering the midazolam before a prison official checks if an inmate is conscious. 
  • Spelling out how that official will check for consciousness: touching the inmate's eyelids, calling out his or her name, and grabbing and twisting the shoulder. 

The case is before Davidson County Chancellor Ellen Hobbs, who is expected to reach a decision before the end of July. Any ruling almost assuredly will be appealed to the Tennessee Supreme Court. 

Regardless of the ruling, attorneys for Irick will ask the Tennessee Supreme Court for a stay of his execution while it reviews the appeal. 

There is also a slight chance the state decides it must put Irick to death via the electric chair. It can only do so if it formally determines it is unable to obtain any one of the three drugs needed to carry out a lethal injection. 

If that happens, Irick's attorneys would likely file a new lawsuit challenging the method of electrocution. 


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