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`
`
`
` Cite as: 581 U. S. ____ (2017)
`
` SOTOMAYOR, J., dissenting
`
`
`SUPREME COURT OF THE UNITED STATES
`
`1
`
`
`
`_________________
` No. 16A1160 (16–1407)
`_________________
`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.
`
`
`
`
`
`
`
`
`
`
`
`
`
`

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