`
`
`
` Cite as: 583 U. S. ____ (2018)
`
` Statement of BREYER, J.
`
`
`
`SUPREME COURT OF THE UNITED STATES
`
`1
`
`
`
`
`
`_________________
` 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)
`
` GINSBURG, J., dissenting
`
`
`SUPREME COURT OF THE UNITED STATES
`
`1
`
`
`
`
`
`_________________
` 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.
`
`
`
`
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