Ronald Smith was executed last week in Alabama after he came up one vote short in the Supreme Court, illuminating what the New York Times says is a “lethal gap” in the high court’s practices. It takes four votes to put a case on the docket but it takes five to stop an execution. The jury recommended life without parole for Smith, but the trial judge overrode that determination, sentencing him. Alabama is the only state that allows such overrides. It is a good bet that the Supreme Court will weigh the constitutionality of the practice. Today, the court refused to hear a challenge from Ohio death row inmate Romell Broom, who argued that because the state botched its first attempt to execute him, trying again would be unconstitutional, NBC News reports. Justices Stephen Breyer and Elena Kagan said they would have granted the appeal to decide the issue.
In Smith’s case last week, four justices voted to delay the execution and hear his appeal. Over the years, some justices have cast a “courtesy fifth” vote to stay an execution when four justices thought the case worthy of further consideration. Chief Justice John Roberts, in his 2005 confirmation hearing, said that “obviously makes great sense.” Last month, when the court considered an application for a stay of execution from another Alabama death row inmate, Roberts provided the fifth vote needed to halt the execution. Last week, he did not in Smith’s case. Law Prof. Eric Freedman of Hofstra University says, “For people to live or die in the middle of the night on the basis of no visible rule is simply at odds with any defensible system of judicial decision making.”