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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 …