Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 2 of 2
Full-Text Articles in Law
No Execution If Four Justices Object, Eric M. Freedman
No Execution If Four Justices Object, Eric M. Freedman
Hofstra Law Faculty Scholarship
I. DRIVING A NAIL WITH A SCREWDRIVER IN CAPITAL CASES
Today’s Supreme Court defines its role as choosing from the thousands of cases pressed upon it annually those very few that will best serve as vehicles for the resolution of legal issues of general importance.
- A. Ordinary Cases
(1) The necessary consequence is that some litigants will seek review and fail to attain it for reasons having nothing to do with the merits of their claims (e.g., the Court desires to have the issue percolate for a while in the lower courts or in the public arena), and will find …
No Execution If Four Justices Object, Eric M. Freedman
No Execution If Four Justices Object, Eric M. Freedman
Hofstra Law Review
Under longstanding Supreme Court practice, a certiorari petition is granted if four Justices vote to do so. But such success may be of little value if the petitioner is a capital prisoner whose litigation adversary, the government, has chosen to set an execution date. Five votes are needed to stay an execution. In capital cases under warrant, then, a prisoner may be executed notwithstanding the decision of the Court to review his or her case.
This sometimes-fatal anomaly has for more than 30 years been the subject of frictions among the Justices, critical commentary by the profession, and visible and …