Tenn. makes unprecedented push to execute 10 killers

Brian Haas | The Tennesseean

NASHVILLE, Tenn. — Never before has Tennessee asked to execute so many of the condemned.

Officials here, believing they are free of the latest round of challenges to Tennessee's death penalty, recently asked the state Supreme Court for execution dates for 10 death row inmates. One of those 10, Billy Ray Irick, is scheduled to die Jan. 15 for raping and killing a 7-year-old Knoxville girl he had been baby-sitting in 1985.

An 11th man, Nickolus Johnson, whose execution was sought separately from the 10, is scheduled to be put to death April 22 for killing a Bristol police officer in 2004.

Those the state has petitioned to execute who don't yet have dates set include David Miller, who killed a disabled woman with a fire poker in 1981. He has lived on death row ever since, longer than all but one other of the 78 inmates housed in Tennessee's death row facility at the Riverbend Maximum Security Institution in Nashville.

For a state that has executed only six death row inmates since 1960 and none since 2009, the request marks an unprecedented push to carry out the death penalty.

"I've been representing death row inmates for two decades, and never in my experience have I ever seen a situation where a state has requested 10 execution dates all at once," said Kelley Henry, who supervises capital punishment defense cases with the Federal Public Defender's Office in Nashville and represents several of those the state is looking to execute. "This is an unprecedented situation."

Legal hurdles

Henry and other attorneys for the condemned men are asking a lower court to halt the executions over questions about the drug the state now plans to use. The Supreme Court could set those dates at any time, but similar challenges in the past have delayed executions in Tennessee, sometimes for years.

The state minimized the significance of seeking execution dates for 10 inmates, saying instead that those 10 had exhausted the normal appeals and review process. Corrections officials believe they now have a system in place to carry out lethal injections since they recently changed their execution drug.

"We filed all 10 motions at the same time because they were all ready to be set for execution, and TDOC was in a position to carry them out under a new protocol," said Sharon Curtis-Flair, spokeswoman for the Tennessee Attorney General's Office, which requested the 10 execution dates.

"The Department could not have carried out the executions earlier because it was unable to procure all of the drugs required under the old protocol."

But Michael Rushford, executive director of the pro-death penalty, California-based Criminal Justice Legal Foundation, said executions aren't ordered by happenstance.

"You don't get this unless the governor wants this," he said. "So obviously they're moving forward because he told the Department of Correction, 'Move forward.'"

Gov. Bill Haslam said through a spokesman that he had no involvement.

"The AG recommends the dates, and the Supreme Court makes the call," spokesman Dave Smith said.

'Sort of backed up'

The average inmate on Tennessee's death row has been sitting there for nearly 19 years. The 10 selected by the state for possible execution dates average more than 27 years on death row.

Miller, convicted of murdering a disabled woman with a fire poker, has had the second-longest wait for an execution in the state, outlasted only by Donald Strouth, 54, who has been on death row since 1978 for slashing the throat of a store owner in Kingsport.

In the years since then, the death penalty here and across the nation has faced a barrage of legal challenges and drug shortages as pharmaceutical companies have pulled commonly used lethal injection drugs from the shelves. Tennessee found itself without sodium thiopental in 2011, putting all executions on hold until it could come up with a new drug, which it finally did in September.

Those delays probably played a major factor in the state's recent double-figure request, said Nashville defense attorney David Raybin, who essentially wrote the state's death penalty statute.

"For lack of a better word, (executions) sort of backed up," Raybin said. "I think what they've done is, they've said, 'We've backed up for so long and now we want to put them all on a fast track because nothing has happened for years.' "

Rushford agreed.

"I think what happened is, is the pipe has been cleared," he said. "This is just built-up cases that they now are able to get into this position."

Another motive?

But Raybin suggested that Tennessee officials may have another motive for asking for so many executions.

On Nov. 1, mass murderer Paul Dennis Reid Jr. died, not by lethal injection while strapped to a gurney but in a bed at Nashville General Hospital at Meharry. Reid murdered seven fast-food restaurant workers in Nashville and Clarksville in 1997 and was sentenced to die — seven death sentences in all — that year.

The family of Angela Mace, who was killed by Reid at a Clarksville Baskin-Robbins, found out he had died in the hospital through the media and was furious. Mace's mother, Connie Black, told the Clarksville Leaf-Chronicle, "If you think about it, he's in a hospital surrounded by family and has a peaceful death. It wasn't supposed to happen that way.

"He just died a normal death like everyone else."

Raybin suspects the state, regardless of its public stance, took notice of Reid's death and the backlash that ensued.

"You've got a guy who killed all those people, the most infamous guy on death row, and he dies a natural death," Raybin said. "Some people could say, 'We're offended because he wasn't executed.'"

Kelley, with the federal public defender's office, said she worries that the push for so many executions will obscure the death row inmates' "individual stor(ies) of injustice," particularly because Tennessee has been putting fewer and fewer killers on death row. She thinks perceptions about the death penalty have softened over the years.

"There is no doubt in my mind that if they were tried today, they would not receive the death penalty," she said.