McGehee v. Hutchinson
581 U.S. 933
SCOTUS
2017
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JASON FARRELL MCGEHEE, ET AL. v. ASA HUTCHINSON, GOVERNOR OF ARKANSAS, ET AL.

No. 16A1003 (16-8770)

SUPREME COURT OF THE UNITED STATES

April 20, 2017

581 U. S. ____ (2017)

SOTOMAYOR, J., dissenting

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 . 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 .

I continue to harbor significant doubts about the wisdom of imposing the perverse requirement that inmates offer alternative methods for their own executions. , at ____ (SOTOMAYOR, J., dissenting) (slip op., at 23); see also (SOTOMAYOR, J., dissenting from denial of certiorari). But given the life-or-death 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 , and .

I dissent from the Court‘s refusal to do so.