Cite as: 581 U. S. ____ (2017)

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SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES
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No. 16A1003 (16–8770)
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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

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MCGEHEE v. HUTCHINSON
SOTOMAYOR, J., dissenting

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., dissenting 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.