As Tennessee Restarts Executions, 40 Years of Data Expose Its Death Penalty as a “Cruel Lottery”

Amid the frenzy over the execution of Billy Ray Irick, a new report exposes Tennessee’s dysfunctional death penalty system.

Aug 9, 2018; Nashville, TN, USA; Protesters gather outside of the Riverbend Maximum Security Institution against the execution of Billy Ray Irick in Nashville, Tenn., Thursday, Aug. 9, 2018. Irick, 59, was convicted in 1986 on charges of raping and murdering Paula Dyer, a 7-year-old Knox County girl. Mandatory Credit: Andrew Nelles/The Tennessean via USA TODAY NETWORK
Protesters gather outside the Riverbend Maximum Security Institution against the execution of Billy Ray Irick in Nashville, Tenn., on Aug. 9, 2018. Photo: Andrew Nelles/The Tennessean via USA Today Network

As Tennessee prepared to kill Billy Ray Irick on the evening of August 9, a procession of cars drove toward a field just up the road from Riverbend Maximum Security Institution. One by one, they rolled down their windows at a security checkpoint, where Tennessee Department of Correction personnel asked passengers which side they were on: protesting the execution or supporting it. Protesters got a piece of orange tape stuck on their windshield. Supporters got green.

There were some 50 people there to oppose Irick’s execution. After parking and a pat-down, they entered the designated area, enclosed by a fence. “We Remember the Victims: But Not With More Killing,” read a large white banner brought from Ohio, courtesy of the abolitionist group Death Penalty Action. But most of the demonstrators were local. Unlike the far-flung prisons that house most death chambers across the country, Riverbend is a short drive from downtown Nashville. The proximity makes visitation easier than at most maximum-security prisons. Among the demonstrators that night were some 20 regular visitors to Tennessee’s death row.

Perhaps the most familiar was Rev. Joe Ingle, a well-known death row minister who has lived in Nashville since 1974. “What brings me here is I know Billy Irick,” Ingle said. In his decades visiting Riverbend, Ingle had come to know Irick as well-liked and trusted by others on the row, and particularly admired for his paintings, three of which he gave to Ingle before he died. “For Billy, his art was the way he expressed himself and dealt with a lot of his demons,” Ingle said.

“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.”

Irick was convicted of raping and murdering a 7-year-old girl named Paula Dyer in Knoxville in 1985. The horrific crime was undoubtedly intertwined with his severe mental illness, symptoms of which revealed themselves when he was just a child. The little girl’s family would later tell an investigator that Irick had been hearing voices and “talking to the devil” before the murder, but that evidence only came out after he’d been sent to death row. “Billy was abandoned by the state,” Ingle said. Today, he explained, Tennessee has a program called ACEs, which stands for Adverse Childhood Experiences and seeks to support kids with trauma and mental health issues. But no such program existed when Irick was growing up. “If they’d have done that for Billy, we wouldn’t be here tonight,” Ingle said.

Billy Ray Irick, on death row for raping and killing a 7-year-old girl in 1985, appears in a Knox County criminal courtroom Monday, Aug. 16, 2010, in Knoxville, Tenn., arguing that he's too mentally ill to be executed by the state. (AP Photo/The Knoxville News Sentinel, Michael Patrick)

Billy Ray Irick appears in a Knox County criminal courtroom on Aug. 16, 2010, in Knoxville, Tenn.

Photo: Michael Patrick/The Knoxville News Sentinel via AP

Irick’s mental illness was just one aspect of the execution that had raised controversy. There was also real concern that Tennessee was about to torture him to death. The state’s new lethal injection protocol adopting midazolam — a sedative linked to botched executions — had been the subject of a trial in Davidson County Chancery Court mere weeks before, over a lawsuit brought by attorneys for Irick and 32 other condemned men. Witnesses from all over the country gave disturbing testimony about executions carried out using midazolam; medical experts explained in detail why it was insufficient to provide anesthesia. Particularly revealing was new evidence culled from the autopsies of people executed using midazolam in other states, which showed how high doses of the drug led to pulmonary edema — fluid in the lungs that would cause a sense of drowning.

Nevertheless, the court rejected the plaintiffs’ claims, and the Tennessee Supreme Court declined to intervene. When the U.S. Supreme Court denied a stay of execution hours before Irick was set to die, Justice Sonia Sotomayor issued a scathing dissent. “If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience,” she wrote, “then we have stopped being a civilized nation and accepted barbarism.”

As 7 p.m. approached, the crowd outside grew quiet. Any minute, according to the protocol, Irick would be strapped onto the gurney, the IVs secured, and his hands taped down. At 7:10, he was supposed to give his last statement. The protesters formed a large circle, held candles, and sang “Amazing Grace,” while a handful of people in the pro-death penalty area blasted “Hells Bells” by AC/DC in their direction. One woman, Brenda Tindall, was incredulous that there were so many people there to oppose the execution. Irick “had no sorrow in his face,” she said. “Did you notice that on TV? Zero. I can read people very well.” As a Christian, she said, she was certain God wanted people like Irick to die. “It’s in the Bible.”

But most of the people gathered outside the prison felt the opposite way. David Bass first visited a man on death row four years ago. He expected to meet a monster, he said, but instead found a human being who struck him as kind. “It started messing with my brain,” he said. Over time he started coming once a week. Like Irick, the man he visits has been on death row for more than 30 years. “He’s seen six of these,” Bass said.

Dan Mann, who came with his daughters, was emotional as he talked about a different man, who he has visited for eight years. He tends to call Mann’s wife while the family makes dinner and she puts him on speaker phone. Years ago, they would apologize “for living life in front of him,” Mann said, “to which he replied, ‘I live vicariously through you. This is my life as well.’”

“These are real friends,” Mann said. “We know what some of them did was heinous. But the nature of my faith is that it’s for redemption,” he said. “I’m here because nobody needs to die alone.”

By 7:30 p.m. there was no report from the prison. Anxiety grew the more time passed. The chancery court’s decision had been partly based on the assumption that the execution — and the duration of any pain associated with midazolam — would be relatively short. As the sky darkened, people started to leave. But just before 8 p.m., The Tennessean sent a news alert. The execution was complete.

News stories followed quickly. The execution began late and took longer than average; there was evidence that Irick might well have been conscious and experiencing pain, just as attorneys had warned. Dave Boucher, who witnessed for The Tennessean, described snoring, one possible sign that the midazolam had not worked as intended. Steven Hale of the Nashville Scene described how two minutes after the consciousness check, “Irick jolted and produced what sounded like a cough or a choking noise. He moved his head slightly and appeared to briefly strain his forearms against the restraints. Around 7:37, the color in Irick’s face changed to almost purple.” The curtains were closed after he appeared to stop breathing, Hale wrote. Then the warden spoke over the loudspeaker. “That concludes the execution of Billy Ray Irick. Time of death, 7:48 p.m. Please exit now.”


Protesters gather outside the Riverbend Maximum Security Institution on Aug. 9, 2018.

Photo: Liliana Segura/The Intercept

Irick’s execution was the first in Tennessee in almost nine years. With the state rushing to kill two more men at Riverbend by the end of 2018, the fight over the death penalty is not going away. Yet, in a major election year — and for all the recent coverage and controversy — the topic has been conspicuously absent from Tennessee’s electoral debates. In such a conservative state, critiquing capital punishment is not likely to be a winning tactic. Yet the restarting of the death machinery in Nashville runs against a well-documented trend both in Tennessee and the rest of the country. Executions are declining year after year — and new death sentences have become vanishingly rare.

The state of Tennessee’s death penalty was documented in a comprehensive report published last month in the summer issue of the Tennessee Journal of Law and Policy. Somewhat lost amid the frenzy over Irick’s execution, it was co-authored by Bradley MacLean, a veteran capital defense attorney who represents Abu Ali Abdur’Rahman, the named plaintiff in the lethal injection lawsuit. The 97-page article draws from years of research assessing capital punishment as applied over four decades in Tennessee. It reveals a staggering rate of death sentences reversed or vacated by the courts due to issues such as ineffective assistance of counsel, prosecutorial misconduct, and innocence.

“We tend to forget the reason behind Tennessee’s current capital sentencing scheme,” the authors write. It goes back to the landmark 1972 U.S. Supreme Court ruling in Furman v. Georgia, which declared death sentences unconstitutional nationwide. At the heart of the decision was evidence that the death penalty was being “freakishly” applied to “a capriciously selected random handful,” who ended up on death row less because of the nature of their crime and more because of factors like race and geography. “These death sentences are cruel and unusual in the same way that being stuck by lightening is cruel and unusual,” Justice Potter Stewart famously wrote in Furman.

“It is impossible to conceive how Tennessee’s death penalty system is serving any legitimate penological purpose.”

States set about passing new death penalty laws, and in 1976, in Gregg v. Georgia, the court upheld a new model of death penalty statutes, designed to ensure that sentences were less arbitrarily imposed. Tennessee’s law was revised accordingly. Yet more than 40 years later, its death penalty is emblematic of the very problems identified in Furman. MacLean’s co-author, H.E. Miller Jr., examined every death sentence handed down in Tennessee since its law was enacted. Of 2,514 people found guilty of first-degree murder in Tennessee between 1977 and June 30, 2017, he found, 192 were sentenced to die. Of those, more than half — 106 people — had seen their sentences or convictions vacated. Of the remaining 86, only six had been executed. Irick was the seventh. By comparison, the study found, in the same 40-year period, “24 condemned defendants died of natural causes on death row.”

Tennessee’s death penalty today is “a cruel lottery, entrenching the very problems that the court sought to eradicate,” the report concluded. The lottery is not entirely random; as in the cases that led to Furman, there is evidence of racism — African-Americans represent 14 percent of Tennessee’s population and 44 percent of its death row, the study found. The evidence is particularly stark in the most recent sentences, most of which come out of Shelby County, home to Memphis. Among nine trials in which new death sentences were imposed between July 2007 and June 2017, all but one defendant was African-American.

The decline of capital punishment in Tennessee comes even as lawmakers and the state Supreme Court have “gradually expanded the class of death-eligible defendants.” Despite Gregg’s directive that the death penalty must be narrowly imposed, the general assembly has added to the list of aggravating factors that can send a person to die, while the court has broadened their interpretation. Today there are 17 such aggravating factors. That death sentences continue to decline in spite of this suggests the policy is mostly useless, the authors write. “At this level of infrequency, it is impossible to conceive how Tennessee’s death penalty system is serving any legitimate penological purpose.”

The findings of the Tennessee report paint a familiar portrait of a failed policy that exists in some version or another across death penalty states. In a number of them, the very architects of the death penalty statutes passed after Furman have expressed dismay at what followed. In California, an attorney named Don Heller wrote a 1978 ballot initiative that expanded the “special circumstances” that would make defendants eligible for the death penalty. Prosecutors rushed to file capital charges. “Everyone was trying to put a notch on their gun,” Heller told me in 2016. Even as California’s condemned population has grown to become the largest in the country, only 13 executions have been carried out since Furman. One of the executed men, Heller believes, was innocent.

In Arizona, the death penalty has been similarly expanded — so much so that the state’s sentencing statute was recently challenged in a petition filed before the U.S. Supreme Court by Neal Katyal, former solicitor general for the Obama administration. The brief in Hidalgo v. Arizona called on the court to declare the death penalty unconstitutional, using Arizona as “an exemplar of the arbitrariness in the imposition of the death penalty in the United States.” Among those who signed an amicus brief was Rudy Gerber, the man who authored Arizona’s new death penalty law after Furman.

“I thought, well, having a new death penalty law is like having a new tax code,” Gerber told me last year, as Hidalgo was pending before the court. But as he saw his law take effect in Arizona, he was unnerved. He had not predicted that prosecutors would be so eager to use it, nor had he expected the law would be amended to make more and more defendants eligible for death. Whereas he wrote the original law to include six aggravating factors, today there are 14 that can send a person to death row in Arizona. Ironically, the very mechanism that was supposed to fix the death penalty “has put us right back into the arbitrariness and caprice that was condemned in Furman,” Gerber says.

“No medieval torture could be more bizarre.”

The man who wrote Tennessee’s death penalty law, David Raybin, is now a defense attorney in private practice. He was still a student at the University of Tennessee College of Law when Furman passed in 1972. “I was dealing with getting on law review and that kind of thing,” he told me in an interview last month. He recalls Furman as important, but not earth shattering; after all, it came amid “the so-called criminal law revolution of the late ’60s in the early ’70s,” bringing landmark rulings such as Miranda v. Arizona, which enshrined the right of defendants to be informed of their constitutional rights. “Every time you turned around, there was another decision coming out that had to do with the criminal justice system.”

Nevertheless, just a few years later, while working in the state attorney general’s office, Raybin found himself drafting Tennessee’s new death penalty law. Like several other states, its initial attempt at a constitutional death penalty statute had been rejected by the courts. “The legislature said, ‘We want a new death penalty statute.’ So they go to the attorney general and the attorney general comes to me and says, ‘Kid, come here.’ He says, ‘Write me a death penalty statute.’ So, I said, ‘OK.’”

Raybin drafted Tennessee’s 1977 law based on what had passed constitutional muster in Gregg — a model “we perceived to be state-of-the-art,” he said. As he recalls, prosecutors were somewhat leery of capital prosecutions at first, but many soon embraced them. The death penalty proved particularly useful for its “coercive effect” — a tool to get guilty pleas to first-degree murder. “That’s why it’s so near and dear to prosecutors’ hearts,” Raybin said.

As new death sentences peaked between the late 1980s and early 1990s, a number of problems became clear. There was the failure by the state to fund capital defense, which led to poor representation. Some death sentences imposed in felony murder cases were also troubling to Raybin — “How do you distinguish one 7-Eleven killing from another?” In the Tennessee study, the authors contrast one such robbery-murder that led to a death sentence to a brutal case involving multiple victims including a pregnant woman and a 16-month-old infant. The defendants in the latter case were sentenced to life.

Raybin worked as a prosecutor for 10 years. Although he is not opposed to the death penalty, he has written extensively about its many flaws in the decades since he left the attorney general’s office. Among those he has represented as a defense attorney was Daryl Holton, a man on death row who gave up his appeals and was executed in 2007. Holton chose to die in the electric chair, with Raybin as a witness. In a detailed account, he called the execution “barbaric in the extreme. No medieval torture could be more bizarre.” But he’s also critical of lethal injection, a method of execution once “perceived as a benign way to do this,” he told me, but which has “just turned into chaos. … It’s just an absolute disaster.”

“To me it detracts from the purpose of even having a death penalty,” Raybin said. “And it dehumanizes people and everybody who’s associated with it.”

Candles are lit during a vigil at Fisk University to protest the execution of Billy Ray Irick Thursday, Aug. 9, 2018, in Nashville, Tenn. Tennessee carried out the execution of Irick, condemned for the 1985 rape and murder of a 7-year-old girl, marking the first time the state has applied the death penalty since 2009. (AP Photo/Mark Humphrey)

Candles are lit during a vigil at Fisk University to protest the execution of Billy Ray Irick on Aug. 9, 2018, in Nashville, Tenn.

Photo: Mark Humphrey/AP

As protesters stood outside the prison last week, a vigil took place at Fisk Memorial Chapel, organized by Tennesseans for Alternatives to the Death Penalty. The group also held a vigil at a church in Memphis and another one in Knoxville “to oppose the execution of Billy Ray Irick and to remember all victims of violence, particularly Paula Dyer.”

Earlier in the week, TADP had held a rally at Nashville’s Legislative Plaza. Among the speakers was Ray Krone, who addressed the crowd from a podium next to a banner that read “Mental Illness: Treat the Illness, Don’t Kill the Person.” Krone was twice convicted in Arizona of a murder he did not commit, a prosecution based on junk science. Today he lives in East Tennessee. “We moved here six years ago, and we love it,” he told me at the rally in Nashville. As a resident, he said, it is especially important to speak out against “something that is a personal heartache and hardship for me.”

Krone addressed the crowd, telling his story and describing the toll it took on his family. Afterward, he carried a box of petitions across the street to the state Capitol, containing more than 62,000 signatures. An aide to Gov. Bill Haslam was there to receive them, but it felt like an empty gesture. The governor had already released a statement saying he would not intervene.

Stacy Rector, the head of TADP, introduced Krone to the aide, urging him to consider the implications of restarting executions in the state. “I’m more than willing to have a discussion about that,” Krone added. The aide shook his hand politely, then turned with the box and walked away.

Top photo: People gather outside the Riverbend Maximum Security Institution to protest the execution of Billy Ray Irick in Nashville, Tenn., on Aug. 9, 2018.

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