                 Cite as: 589 U. S. ____ (2019)            1

                     OpinionofofSthe
                  Statement          Court , J.
                                 OTOMAYOR


SUPREME COURT OF THE UNITED STATES
                         _________________

                     No. 19–6477 (19A482)
                          _________________


            CHARLES RUSSELL RHINES v.
              DARIN YOUNG, WARDEN
 ON APPLICATION FOR STAY AND PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                 THE EIGHTH CIRCUIT
                      [November 4, 2019]

   The application for stay of execution of sentence of death
presented to JUSTICE GORSUCH and by him referred to the
Court is denied. The petition for a writ of certiorari is de-
nied.
   Statement of JUSTICE SOTOMAYOR respecting the denial
of certiorari.
   In 1993, a South Dakota jury sentenced petitioner
Charles Rhines to death for murdering his co-worker. In
order to assist them in preparing a state clemency applica-
tion, Rhines’ federal habeas attorneys retained medical ex-
perts to evaluate Rhines. State officials, as well as a state
court, refused to grant the experts access to Rhines in
prison. The Federal District Court below also denied
Rhines’ request for access. It reasoned, among other things,
that the federal public defender statute, 18 U. S. C. §3599,
did not give it authority to “supervise or control a state’s
clemency process” and that South Dakota did not violate
Rhines’ due process rights by denying his experts access to
the prison. 2018 WL 2390130, *9 (D SD, May 25, 2018).
   The Court of Appeals for the Eighth Circuit did not ad-
dress the bulk of Rhines’ contentions. It instead dismissed
the appeal, concluding that the expert-access issue was “ei-
ther moot, or . . . not . . . fully exhausted.” 2019 WL
5485274, *1 (Oct. 25, 2019). In essence, because Rhines’
2                    RHINES v. YOUNG

                     OpinionofofSthe
                  Statement          Court , J.
                                 OTOMAYOR

execution was imminent and his clemency application
pending before the Governor of South Dakota, the court
found that Rhines should have previously asked the Gover-
nor to allow his experts access to the prison—or that he
could still do so. Ibid. The Eighth Circuit reached that con-
clusion even though the anticipated expert report was, in
Rhines’ view, an important predicate for the clemency ap-
plication itself.
   It is unclear from this record whether an expert evalua-
tion is necessary to Rhines’ clemency application. Although
Rhines’ experts believed there were additional grounds for
investigation—including traumatic events that Rhines suf-
fered earlier in his life—Rhines, as the State notes, has al-
ready been evaluated by several psychiatric experts in a dif-
ferent context. For that reason, I do not dissent from the
denial of certiorari. I write separately, however, to note
that this Court’s denial of certiorari does not represent an
endorsement of the lower courts’ opinions. I also write sep-
arately to emphasize that clemency is not “a matter of
mercy alone,” but rather is the “ ‘fail safe’ in our criminal
justice system.” Harbison v. Bell, 556 U. S. 180, 192 (2009)
(quoting Herrera v. Collins, 506 U. S. 390, 415 (1993)). By
closing the prison doors in this context, a State risks ren-
dering this fundamental process an empty ritual.
