_________________

_________________ 1 Cite as: 583 U. S. ____ (2018)

Statement of B REYER , 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 J USTICE T HOMAS and by him referred to the Court is denied. The petition for a writ of certiorari is denied. The order heretofore entered by J USTICE T HOMAS is vacated.

J USTICE B REYER , 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) (B REYER , J., concur

ring) (slip op., at 3)._________________

_________________ 1 Cite as: 583 U. S. ____ (2018)

G INSBURG , 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]

J USTICE G INSBURG , with whom J USTICE S OTOMAYOR 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 lethalinjection 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 pr emised 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

G INSBURG , 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.