Arthur v. Dunn

Cite as: 581 U. S. ____ (2017) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
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No. 16A1160 (16–1407)
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THOMAS D. ARTHUR v. JEFFERSON S. DUNN,
COMMISSIONER, ALABAMA DEPARTMENT
OF CORRECTIONS, ET AL.
ON APPLICATION FOR STAY AND PETITION FOR WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[May 25, 2017]
The application for stay of execution of sentence of death
presented to JUSTICE THOMAS and by him referred to the
Court is denied. The petition for a writ of certiorari is
denied. The order heretofore entered by JUSTICE THOMAS
is vacated.
JUSTICE SOTOMAYOR, dissenting from denial of application
for stay and denial of certiorari.
Alabama plans to execute Thomas Arthur tonight using
a three-drug lethal-injection protocol that uses midazolam
as a sedative. I continue to doubt whether midazolam is
capable of rendering prisoners insensate to the excruciat-
ing pain of lethal injection and thus whether midazolam
may be constitutionally used in lethal injection protocols.
See Arthur v. Dunn, 580 U. S. ___, ___–___ (2017)
(SOTOMAYOR, J., dissenting from denial of certiorari) (slip
op., at 16–17); Glossip v. Gross, 576 U. S. ___, ___–___
(2015) (SOTOMAYOR, J., dissenting) (slip op., at 10–22).
Here, the State has—with the blessing of the courts be-
low—compounded the risks inherent in the use of midazo-
lam by denying Arthur’s counsel access to a phone through
which to seek legal relief if the execution fails to proceed
as planned.
Prisoners possess a “constitutional right of access to the
2 ARTHUR v. DUNN
SOTOMAYOR, J., dissenting
courts.” Bounds v. Smith, 430 U.S. 817, 821 (1977).
When prison officials seek to limit that right, the re-
striction is permitted only if “it is reasonably related to
legitimate penological interests.” Turner v. Safley, 482
U.S. 78, 89 (1987). Here, the State has no legitimate
reason—penological or otherwise—to prohibit Arthur’s
counsel from possessing a phone during the execution,
particularly in light of the demonstrated risk that midazo-
lam will fail. See Arthur, 580 U. S., at ___ (slip op., at 16)
(detailing “mounting firsthand evidence that midazolam is
simply unable to render prisoners insensate to the pain of
execution”). To permit access to a telephone would impose
no cost or burden on the State; Arthur’s attorneys have
offered to pay for the phone and provide it for the State’s
inspection. The State’s refusal serves only to frustrate any
effort by Arthur’s attorneys to petition the courts in the
event of yet another botched execution. See, e.g., Berman,
Arizona Execution Lasts Nearly Two Hours, Washington
Post, July 23, 2014 (“During the execution, Wood’s attor-
neys filed a request to halt the lethal injection because he
was still awake more than an hour after the process be-
gan”), https://www.washingtonpost.com/news/post-nation/
wp/2014/07/23/arizona-supreme-court-stays-planned-execution/
(as last visited May 25, 2017). Its action means that when
Thomas Arthur enters the execution chamber tonight, he
will leave his constitutional rights at the door.
I dissent from the Court’s refusal to grant the applica-
tion for a stay and accompanying petition for certiorari.