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 not-so-visible litigation. None of these have led the Court to a satisfactory solution of, or even any transparent engagement with, the problem. Yet it remains as serious as ever. Indeed recent legal trends threaten to make the situation worse. The appearance and reality both of equal justice under law and of sound judicial decision-making are suffering unnecessary damage.

The article responds by setting forth a proposal to assure judicious decision-making by the Court in all capital cases under warrant. Its Parts:
- Summarize the history of the problem to date.
- Propose 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. The stay extends to any other cases held for the first one.
- Urge the Court, in addition to adopting my proposal, to be transparent (a) in the rationale for the disposition of particular cases, and (b) in the formulation and publication of whatever solution it adopts.


This is the published version of this article. A pre-print of this article can be found at https://scholarlycommons.law.hofstra.edu/faculty_scholarship/367/



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