In a new legal challenge to Tennessee's execution process, death row offenders say using a firing squad would be more humane than the state's current lethal injection method.
The federal lawsuit, filed Tuesday, says the state tortured Billy Ray Irick to death when he was injected with toxic chemicals and argues using the same drugs in another execution would violate constitutional bans on cruel and unusual punishment.
Their argument is a familiar one, which other courts have rejected, but the inmates go one step further in outlining a macabre and required component of such lawsuits.
They suggest several other methods, including a firing squad, are preferable and are constitutional ways to die compared to the state's three-drug execution protocol.
A firing squad can be "implemented because the Big Buck Shooting Range is located on the grounds of Riverbend Maximum (Security) Institution and can easily accommodate the equipment required for an execution..." the lawsuit states, referencing the Nashville prison that houses Tennessee's death row and execution chamber.
"Execution by this manner and method would damage the heart and cause a near immediate drop in blood pressure, including blood pressure in the brain. This will cause a loss of consciousness rapidly followed by death."
Why the inmates filed the lawsuit
It's still highly unlikely Tennessee would actually use a firing squad, given the electric chair is the currently legal alternative to lethal injection. The chances the inmates win this lawsuit are also low, considering many of their arguments mirror failed legal maneuvers deployed by Irick.
The lawsuit is brought by attorneys representing death row offenders David Earl Miller, Nicholas Todd Sutton and Stephen Michael West. Miller — who's spent the most time on death row among its 60 current occupants — is scheduled to be executed Dec. 6. Edmund Zagorski, scheduled to die Oct. 11, is not part of this lawsuit.
Dana C. Hansen Chavis, a federal public defender representing Miller, Sutton and West in the lawsuit, declined to comment Thursday. Other legal challenges to lethal injections in Tennessee are still pending.
Irick and 32 other death row offenders sued the state in early 2018, arguing its lethal injection violates the Constitution. After a two-week trial in July, Davidson County Chancellor Ellen Hobbs Lyle rejected the inmates' arguments. The Tennessee Supreme Court and U.S. Supreme Court also declined to intervene in Irick's case.
On Aug. 9, Irick was executed by lethal injection inside the prison. He was convicted in 1986 on charges of raping and murdering Paula Dyer, a 7-year-old Knox County girl.
An execution team injected Irick with midazolam, vecuronium bromide and potassium chloride. Midazolam is supposed to render the inmate unconscious and unable to feel pain, but expert testimony at a trial leading up to Irick's death showed the drug frequently does not prevent pain.
That would mean the second and third drugs, intended to stop the lungs and heart, would cause pain similar to drowning and being burned alive, advocates and experts say.
Irick snored, his chest heaved, and at times coughed during the roughly 21-minute execution. Attorneys in the lawsuit say this is clear evidence he was tortured to death.
The lawsuit notes several states have stopped using midazolam. Irick and Miller are both overweight and have similar body types, as to other death row offenders, the lawsuit states, arguing this means the offenders would likely suffer the same torture as Irick.
What are the other proposed execution alternatives?
In the lawsuit, attorneys also argue the legal requirement that they propose alternative execution methods is unconstitutional. They say it violates inmates' eight and 14th amendments as "it inflicts serious psychological harm and is itself a type of cruel and unusual punishment."
If they must present alternatives, the lawsuit states the four would "significantly reduce a substantial risk of severe pain" compared to the current protocol.
Three of the four proposed alternatives involve medications. They are:
- Pentobarbital: Other states, including Texas, use the drug. Although Tennessee prison officials have said they can't obtain it, attorneys here argue they haven't tried hard enough.
- Removing the vecuronium bromide: Simply removing the second drug from the current three-drug method would reduce the chance the offender is tortured, according to the lawsuit. Attorneys tried to raise this argument late in Irick's legal proceedings as well.
- Orally administering the drugs: This proposal suggests there are medications that could be administered orally instead of through an injection. It does not explain how this would cause less pain than injecting the drugs.
If none of those three are accepted, inmates ask the state to use a firing squad.
Why firing squads are unlikely in Tennessee
Only Mississippi, Oklahoma and Utah formally authorize the use of a firing squad, according to the Death Penalty Information Center. Utah officials executed an inmate by firing squad in 2010, the most recent usage in the United States.
Tennessee, like most other states that allow the death penalty, uses lethal injection as the primary means of execution. If the state certifies it can't find lethal injection drugs, or if a court determines lethal injection is unconstitutional, then Tennessee will use the electric chair.
If a court determines the electric chair is unconstitutional, then the state is allowed to carry out executions via "any constitutional method." In theory, that could mean a firing squad, but that would require several significant court rulings.
In 2017, the U.S. Supreme Court denied an Alabama offender's request to die using a firing squad instead of lethal injection. However, Justices Sonia Sotomayor and Stephen Breyer dissented with the majority of the court.
"Even if a prisoner can prove that the state plans to kill him in an intolerably cruel manner, and even if he can prove that there is a feasible alternative, all a state has to do to execute him through an unconstitutional method is to pass a statute declining to authorize any alternative method," Sotomayor wrote in her dissent, as reported by USA TODAY. "This cannot be right."
The inmates in the lawsuit outline a proposed protocol for a firing squad. They cite a version of the Procedure for Military Executions, created by the U.S. Army in 1959.
The procedure requires eight marksmen using rifles. At least one rifle, but no more than three, would be loaded with blanks. The marksmen would grab the rifles at random, in order to lessen the chances the executioners know who actually fatally shoots the condemned.
A target would be placed over the offender's heart, a hood over the inmate's head. The marksmen would stand 15 paces away from the inmate. After the inmate is allowed to make a final statement, an officer would give the order to fire.
As noted in the lawsuit, the protocol also includes a back-up plan if the offender doesn't immediately die. Called in the protocol a "coup de grace," or "blow of mercy," an officer would take a handgun, hold the muzzle one foot above the offender's ear and pull the trigger.
Reach Dave Boucher at 615-259-8892, dboucher@tennessean.com and on Twitter @Dave_Boucher1.