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. ----, ----, 137 S.Ct. 725, 725-726,
197 L.Ed.2d 225 (2017) (SOTOMAYOR, J., dissenting from denial of certiorari). 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 ----,
137 S.Ct., at 726 (opinion of SOTOMAYOR, J.)., 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 ---- - ----, 137 S.Ct.,
at 726-727 (opinion of SOTOMAYOR, J.) (describing similar evidence in that case).
If the drug indeed fails, the consequences for Irick will be extreme: Although the
midazolam may *2temporarily 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.,
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 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, *3less 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. ----, 135
S.Ct. 2726, 192 L.Ed.2d 761, this Court did impose the "perverse requirement that
inmates offer alternative methods for their own executions." McGehee v. Hutchinson
, 581 U.S. ----, ----, 137 S.Ct. 1275, 1276, 197 L.Ed.2d 746 (2017) (SOTOMAYOR,
J., dissenting from denial of application for stay and denial of certiorari). 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., 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 ----, 137
S.Ct., at 725 (opinion of SOTOMAYOR, J.). 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, 103 S.Ct. 3383, 77 L.Ed.2d
1090 (1983).