An expert pathologist has testified that executed inmates in Tennessee suffered symptoms similar to those who died by drowning, which may constitute unconstitutional torture under the Eighth Amendment.

The Eighth Amendment to the United States Constitution

The Eighth Amendment of the United States Constitution was adopted as part of the Bill of Rights in 1791. It states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The United States Supreme Court has ruled that the Eighth Amendment also applies to the states through the Fourteenth Amendment.

In Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan wrote, “There are, then, four principles by which we may determine whether a particular punishment is ‘cruel and unusual’.” First, the “essential predicate” is “that a punishment must not by its severity be degrading to human dignity,” especially torture. Second, “a severe punishment that is obviously inflicted in wholly arbitrary fashion.” Third, “a severe punishment that is clearly and totally rejected throughout society.” Fourth, “a severe punishment that is patently unnecessary.”

Because of the Eighth Amendment, the Supreme Court has ruled that certain punishments are forbidden regardless of the crime, some punishments are forbidden for certain crimes, and special procedures must be followed in death penalty cases.

Planned Execution of Billy Ray Irick

Billy Ray Irick is a 59-year-old man from Knox County, Tennessee who has been convicted of the 1985 rape and murder of a 7-year-old girl. Irick is the next person who is scheduled to be executed by the state of Tennessee. Irick’s scheduled execution was on August 9, 2018.

Irick’s attorneys hired expert pathologist Dr. Mark Edgar to explain why they believe that certain lethal injection drugs constitute unconstitutional torture. Dr. Edgar is a pathologist at Emory University. Dr. Edgar analyzed 27 autopsies of inmates who were executed using a drug called midazolam. Tennessee plans to use midazolam as part of the three-drug cocktail that will be used to execute Irick.

Dr. Edgar testified that his analysis of the autopsies showed that inmates were able to feel immense pain throughout their executions. Dr. Edgar said that 23 of the 27 autopsies that he reviewed showed signs of pulmonary edema. Someone who suffers from pulmonary edema will show signs of bubbles, froth, or foam in the lungs or airways.

Dr. Edgar said that “I was struck by the abnormalities in the lung… In addition to that, the majority of them — over 85 percent of them — showed pulmonary edema… It’s a medical emergency, and it’s a state of extreme discomfort.”

The Tennessee Department of Correction disagrees with Dr. Edgar’s finding. The state argues that midazolam renders an inmate unconscious and unable to feel pain. The state plans to call a different medical expert who will testify that Tennessee’s proposed three-drug protocol does not constitute unconstitutional torture. In the state’s brief, they cited a 2015 United States Supreme Court ruling arguing that, “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.”