No Execution if Four Justices Object

Lecture Date



Death penalty cases have received a tremendous amount of attention in recent years. Some states have eliminated execution as a form of punishment while others have aggressively used it. For those facing the death penalty, their last hope is the U.S. Supreme Court. However, four justices are needed to review a case and five votes are required to stay an execution. Professor Freedman’s lecture will review the history, policy and procedural nuances of the Supreme Court’s role in applying the death penalty, and provide recommendations for future Supreme Court policy.

Speaker Comments

The press noted the proposal discussed herein and linked to the attached article when the issue arose in a highly-visible case during 2015.
Adam Liptak, Execution Case Highlights the Power of One Vote, N.Y. Times, Jan. 6, 2015, http://www.nytimes.com/2015/01/26/us/in-taking-up-execution-drugs-case-justices-highlight-importance-of-a-single-vote.html?_r=0;

Author Linda Greenhouse also commented that adoption of this “sensible idea” would “save the court from itself."
Linda Greenhouse, The Supreme Court’s Death Trap, N.Y Times, Apr. 1, 2015, http://www.nytimes.com/2015/04/01/opinion/the-supreme-courts-death-trap.html

There was a similar flurry in another case at the end of 2016.
Adam Liptak, The Lethal Gaps in How the Supreme Court Handles the Death Penalty, N.Y. Times, Dec. 12, 2016, https://www.nytimes.com/2016/12/12/us/politics/the-lethal-gaps-in-how-the-supreme-court-handles-the-death-penalty.html

Speaker Information

Eric M. Freedman, Siggi B. Wilzig Distinguished Professor of Constitutional Rights, has two primary areas of academic interest. One is constitutional law and history, with a special emphasis on the history of the Revolutionary period, First Amendment topics, and separation of powers, including remedies for presidential misconduct. The second is litigation-centered and includes the fields of civil and criminal procedure and strategy, with a focus on the death penalty and habeas corpus.

He has testified on these matters before Congress and other legislative bodies, and is regularly quoted in the media. He is also actively involved in the continuing professional education of lawyers and judges, and in providing pro bono litigation advice and representation.

In addition to numerous articles in professional journals, Professor Freedman is the author of Habeas Corpus: Rethinking the Great Writ of Liberty, and of the forthcoming Habeas Corpus in Three Dimensions, both publications of New York University Press. He has been named the John DeWitt Gregory Scholar for 2018-19 to pursue his research.

Professor Freedman serves as the reporter for the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Capital Cases, which were released at a conference at Hofstra’s Maurice A. Deane School of Law and are regularly relied upon by courts at all levels. He is a recipient of the Dybwad Humanitarian Award of the American Association on Mental Retardation for his work in exonerating an innocent death row inmate in Virginia.

Eric Freedman is a graduate of the Phillips Exeter Academy, Yale College and Yale Law School, and earned an MA in history from Victoria University of Wellington, New Zealand, while holding a Fulbright scholarship there. Before coming to Hofstra, he practiced law at a major New York City firm and held a judicial clerkship on the United States Court of Appeals for the Second Circuit.

Freedman Lecture.pdf (1035 kB)
lecture program