Faculty The U.S. Supreme Court

Published on January 28, 2015 | by LawNews

Prof. Eric M. Freedman Proposes Fix for Gap in SCOTUS Capital Case Voting Procedures

Eric M. Freedman, the Siggi B. Wilzig Distinguished Professor of Constitutional Rights, has published a preliminary draft of his article “Idea: No Execution If Four Justices Object,” forthcoming in the Hofstra Law Review.

The article discusses a longstanding problem with the Supreme Court voting procedures in capital cases and proposes a new voting rule.

The current procedure allows for four votes to hear a case, but five votes to stay an execution. This means that the Supreme Court could agree to hear a case after the petitioner has been executed. Professor Freedman proposes a rule that in any capital case, regardless of its procedural posture, the votes of four justices are sufficient to stay the execution, irrespective of whether those four justices are ready to vote for plenary review of the case.

Professor Freedman’s article was cited, and he was quoted, in the New York Times story “Execution Case Highlights the Power of One Vote,” which reported on a recent case that highlighted the gap in the Supreme Court voting procedures. The Supreme Court agreed to hear a challenge to the chemicals Oklahoma uses to execute condemned prisoners, but the lead petitioner in the case, Charles F. Warner, was already dead. He was executed eight days earlier, after the Supreme Court refused to stay his execution.

“What happened to Charles Warner was not an isolated glitch,” said Professor Freedman in the Times story. “It was a typical, if high-visibility, example of a systemic flaw in the machinery of justice that has gone unrepaired for far too long.”

Professor Freedman’s article is available to download at Hofstra Law’s Scholarly Common’s website.

Hofstra Law student Benjamin A. Gerson 3L and law librarian Patricia A. Kasting provided research assistance for the article.

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