concurring.
I concur in the court’s per curiam opinion vacating the stay entered by the district court. However, for the reasons described below, on en banc review, I would overrule Young v. Hayes, 218 F.3d 850 (8th Cir.2000), and adopt a due-process standard more in line with relevant Supreme Court precedent and the approaches taken by other courts.
I believe that Young misapplied Justice O’Connor’s concurring opinion in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998), which explained that “some minimal procedural safeguards apply to clemency proceedings. Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.” Id. at 289, 118 S.Ct. 1244. Young failed to explain how the limited due-process protections recognized in Woodard prohibit the state from preventing a government employee from filing a letter in support of clemency. Instead, Young found — without substantial *632explanation — a due-process violation despite the fact that the prisoner still could submit a clemency application and in the absence of any evidence that the governor would employ an utterly arbitrary process to consider the application. The same is true in this case. Thus, I conclude that Young lacks support in relevant Supreme Court authority.
Young also runs counter to the weight of authority from other courts. Young is an outlier when compared to the narrower approaches adopted by our sister circuits, which have taken to heart Justice O’Con-nor’s emphasis on the word “minimal.” See Faulder v. Tex. Bd. of Pardons & Paroles, 178 F.3d 343, 344-45 (5th Cir.1999) (focusing on whether the “extreme situations” identified by Justice O’Connor were present); Anderson v. Davis, 279 F.3d 674, 676-77 (9th Cir.2002) (identifying ways in which a state might violate procedural due process in its operation of clemency procedures); Duvall v. Keating, 162 F.3d 1058, 1061 (10th Cir.1998); see generally Daniel T. Kobil, Compelling Mercy: Judicial Review and the Clemency Power, 9 St. Thomas L.J. 698, 726-28 (2012). I agree with the Tenth Circuit’s position:
Because clemency proceedings involve acts of mercy that are not constitutionally required, the minimal application of the Due Process Clause only ensures a death row prisoner that he or she will receive procedures explicitly set forth by state law, and that the procedure followed in rendering the clemency decision will not be wholly arbitrary, capricious or based upon whim, for example, flipping a coin.
Duvall, 162 F.3d at 1061. Applying this rule in a highly analogous case, the Kentucky Supreme Court held that the state had not violated due process by preventing a death row inmate from interviewing prison employees and inmates to develop his clemency application. Baze v. Thompson, 302 S.W.3d 57, 59-60 (Ky.2010). The court noted that the prisoner still could file a clemency application and that “no Kentucky statute or constitutional provision creates a right to present a certain type of information in a clemency petition.” Id. at 60.
Similarly, here, the State has not deprived Winfield of any process or procedure guaranteed to him by Missouri law. Winfield still can — and did — file a clemency application with the governor, and he has not pointed to any specific clemency procedure guaranteed by Missouri law that the State has withheld. Because Win-field has received the minimal due process recognized in Woodard, I would vacate the stay entered by the district court.