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`
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`1
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` Cite as: 581 U. S. ____ (2017)
`
`BREYER, J., dissenting
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`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
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`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 BREYER, dissenting from denial of application
`for stay of execution.
`
`Arkansas set out to execute eight people over the course
`of 11 days. Why these eight? Why now? The apparent
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`reason has nothing to do with the heinousness of their
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`crimes or with the presence (or absence) of mitigating
`behavior. It has nothing to do with their mental state. It
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`has nothing to do with the need for speedy punishment.
`
`Four have been on death row for over 20 years. All have
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`been housed in solitary confinement for at least 10 years.
`
`Apparently the reason the State decided to proceed with
`these eight executions is that the ‘use by’ date of the
`State’s execution drug is about to expire. See No. 17–
`1804, at p. 23 (case below) (CA8 Apr. 17, 2017) (Kelly, J.,
`
`
`
`
`
`2
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`
`
`
`
`
` MCGEHEE v. HUTCHINSON
`
`BREYER, J., dissenting
`
`dissenting); see also Brief in Opposition to Application for
`Stay of Executions and Certiorari 11 and Exh. 1. In my
`
`view, that factor, when considered as a determining factor
`separating those who live from those who die, is close to
`random.
`
`
`I have previously noted the arbitrariness with which
`executions are carried out in this country. See Glossip v.
`
`Gross, 576 U. S. ___ (2015) (BREYER, J., dissenting). And I
`have pointed out how the arbitrary nature of the death
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`penalty system, as presently administered, runs contrary
`
`to the very purpose of a “rule of law.” Id., at ___ (slip op.,
`
`at 9). The cases now before us reinforce that point.
`The ever changing state of affairs with respect to these
`
`
`individuals further cautions against a rush to judgment.
`A Federal District Court preliminarily enjoined the State’s
`execution protocol; the Eighth Circuit vacated the injunc-
`tion. The Arkansas Supreme Court has stayed the execu-
`tions of three of these men based on their individual cir-
`cumstances. A Federal District Court has stayed one
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`more. An Arkansas Circuit Court temporarily enjoined
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`the State from using one of the necessary drugs; the Ar-
`kansas Supreme Court stayed that injunction. These
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`individuals have now come before this Court with a varie-
`ty of claims. One involves a Circuit split concerning when
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`an alternative method of execution qualifies as available.
`
`See, e.g., Statement of JUSTICE SOTOMAYOR, post. Another
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`asks whether the State’s compressed execution schedule
`constitutes cruel and unusual punishment. I would grant
`a stay so that the Court can sort out these various cases
`and claims. I would also grant the petition as to the com-
`pressed execution schedule.
`It presents one aspect of
`whether the death penalty is consistent with the Constitu-
`
`tion. See U. S. Const., Amdt. 8.
`
`
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