Hamm v. Dunn ( 2018 )

Cite as: 583 U. S. ____ (2018) 1
Statement of BREYER, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–7855 (17A900)
_________________
DOYLE LEE HAMM v. JEFFERSON S. DUNN,
COMMISSIONER, ALABAMA DEPART-
MENT OF CORRECTIONS, ET AL.
ON APPLICATION FOR STAY AND ON PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
[February 22, 2018]
The motion for leave to file documents under seal with
redacted copies for the public record is granted. The appli-
cation 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 BREYER, respecting the denial of the applica-
tion for stay and the denial of certiorari.
This case reflects the special circumstances of trying to
execute a person who has been on death row for 30 years
and has cancer. As I have previously written, rather than
develop a “constitutional jurisprudence that focuses upon
the special circumstances of the aged,” I would reconsider
the constitutionality of the death penalty itself. Dunn v.
Madison, 583 U. S. ___, ___ (2017) (BREYER, J., concur-
ring) (slip op., at 3).
Cite as: 583 U. S. ____ (2018) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–7855 (17A900)
_________________
DOYLE LEE HAMM v. JEFFERSON S. DUNN,
COMMISSIONER, ALABAMA DEPART-
MENT OF CORRECTIONS, ET AL.
ON APPLICATION FOR STAY AND ON PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
[February 22, 2018]
JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR
joins, dissenting from the denial of the application for stay
and the denial of certiorari.
Petitioner Doyle Lee Hamm is a 61-year-old Alabama
inmate whose medical conditions leave him in a vulnera-
ble physical state. An independent physician, appointed
by the District Court, determined that “no veins in either
[of his arms] would be readily accessible” for the place-
ment of the two intravenous catheters Alabama’s lethal-
injection execution protocol requires. Hamm v. Commis-
sioner, Alabama Department of Corrections, No. 18–10636
(CA11, Feb. 22, 2018), p. 5. Nonetheless, a panel of the
Eleventh Circuit has affirmed the District Court’s denial
of Hamm’s request for a preliminary injunction barring
intravenous lethal injection. The District Court and Elev-
enth Circuit erroneously premised their rejection of
Hamm’s claims on novel understandings about how
Hamm’s execution would be carried out—understandings
gleaned from a stipulation and an affidavit to which
Hamm was given no opportunity to respond. An adversar-
ial process should have tested the risk of “serious illness
and needless suffering,” Glossip v. Gross, 576 U. S. ___,
___ (2015) (slip op., at 12) (quoting Baze v. Rees, 553 U.S.
2 HAMM v. DUNN
GINSBURG, J., dissenting
35, 50 (2008)), presented by the insertion of intravenous
catheters into Hamm’s leg or central veins. That method
of execution, although it fits within the compass of the
State’s execution protocol, has, by all accounts before us,
never been tried before in Alabama. I therefore respectful-
ly dissent from the denial of certiorari.