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

BREYER, J., dissenting 

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 

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

reason has nothing to do with the heinousness of their

crimes or with the presence (or absence) of mitigating

behavior. It has nothing to do with their mental state. It 

has nothing to do with the need for speedy punishment.

Four have been on death row for over 20 years. All have 

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 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

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 injunction. The Arkansas Supreme Court has stayed the executions of three of these men based on their individual circumstances. A Federal District Court has stayed one 

more. An Arkansas Circuit Court temporarily enjoined

the State from using one of the necessary drugs; the Arkansas Supreme Court stayed that injunction. These 

individuals have now come before this Court with a variety of claims. One involves a Circuit split concerning when

an alternative method of execution qualifies as available. 

See, e.g., Statement of JUSTICE SOTOMAYOR, post. Another 

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 compressed execution schedule. It presents one aspect of 

whether the death penalty is consistent with the Constitution. See U. S. Const., Amdt. 8.