_________________ 

_________________ 

 

 

Cite as: 581 U. S. ____ (2017) 1 

SOTOMAYOR, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

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 excruciating 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 below—compounded the risks inherent in the use of midazolam 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 restriction 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 midazolam 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 attorneys filed a request to halt the lethal injection because he

was still awake more than an hour after the process began”), 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 application for a stay and accompanying petition for certiorari.