SUPREME COURT OF THE UNITED STATES
No. 16A1003 (16?8770)
JASON FARRELL MCGEHEE, ET AL . v.?ASA HUTCHINSON, GOVERNOR OF? ?ARKANSAS, ET AL .
ON APPLICATION FOR STAY AND PETITION FOR WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF ??APPEALS FOR THE EIGHTH CIRCUIT
[April 20, 2017]
?The application for stay of execution of sentences of death presented to JUSTICE ALITO ?and by him referred to the Court is denied.? The petition for a writ of certiorari is denied.
JUSTICE GINSBURG and JUSTICE SOTOMAYOR would grant the application for stay of execution and the petition for a writ of certiorari.
JUSTICE BREYER and JUSTICE KAGAN would grant the application for stay of execution.
JUSTICE SOTOMAYOR, dissenting from denial of application for stay and denial of certiorari.
After a four-day evidentiary hearing at which seventeen witnesses testified and volumes of evidence were introduced, the District Court issued an exhaustive 101-page opinion enjoining petitioners? executions.? The court found that Arkansas? current lethal-injection protocol posed a substantial risk of severe pain and that petitioners had identified available alternative methods of execution.? The Eighth Circuit reversed these findings in a six-page opinion.
As Judge Kelly noted persuasively in dissent, the Eighth Circuit erred at both steps of the analysis required by Glossip v. Gross, 576 U. S. ___ (2015).? First, it failed to defer to the District Court?s extensive factual findings and instead substituted its own.? See id., at ___ (slip op., at 16) (a district court?s findings of fact regarding risk of pain are ?review[ed] . . . under the deferential ?clear error? standard?).? The Court of Appeals thus erroneously swept aside the District Court?s well-supported finding that midazolam creates a substantial risk of severe pain.? Second, it imposed a restrictive view of what qualifies as an ?available? alternative under Glossip.
I continue to harbor significant doubts about the wisdom of imposing the perverse requirement that inmates offer alternative methods for their own executions.? Id., at ___ (SOTOMAYOR, J., dissenting) (slip op., at 23); see also ??? Arthur v. Dunn, 580 U. S. ___ (2017) (SOTOMAYOR, J., dis- senting from denial of certiorari).? But given the life-ordeath consequences, the Court, having imposed this requirement, should provide clarification and guidance when the Circuits are divided as to its meaning.? Compare App. to Pet. for Cert. 4a?7a, with Arthur v. Commissioner, Ala. Dept. of Corrections, 840 F. 3d 1268, 1299?1304 (CA11 2016), and In re Ohio Execution Protocol, 2017 WL 1279282, *5?*9, and n. 1 (CA6, Apr. 6, 2017). ?I dissent from the Court?s refusal to do so.