Articles Posted in Criminal Law

Amherst College professor Austin Sarat responds to a federal appellate court decision upholding the conviction and death sentence of Dylann Roof for the 2015 murders of nine members of the historic Emanuel African Methodist Episcopal Church in Charleston, South Carolina, during a meeting of a Bible-study group. Professor Sarat argues that the death penalty is inappropriate even for one of this nation’s most reviled mass murderers because capital punishment has no place in a democratic society.

Amherst College professor Austin Sarat explains why death penalty abolitionists should prioritize seeking grants of clemency in capital cases. Professor Sarat points to studies showing that the use of clemency in individual capital cases has lagged behind a larger trend of states turning away from capital punishment and argues that we as a nation should demand from our leaders the courage and conviction to see people worth saving on death row and to exercise mercy toward them.

Amherst professor Austin Sarat critiques the conclusion of a study by Rose Institute of State and Local Government at Claremont McKenna College suggesting that the American public widely supports the death penalty. Professor Sarat points out that the study’s “sensationalist” questions are likely to elicit responses based on expectations of what the interviewer wants, rather than what respondents would do given the responsibility of deciding real cases in which a real person’s life is at stake.

Cornell Law professor Sherry F. Colb comments on the Pennsylvania Supreme Court’s recent decision overturning Bill Cosby’s conviction for the sexual assault of Andrea Constand. Professor Colb makes clear that the court’s actions in that case do not exonerate Bill Cosby; rather, it remains true that a jury of his peers convicted him of sexual assault based on proof beyond a reasonable doubt.

Marci A. Hamilton, professor at the University of Pennsylvania and CEO of CHILD USA, comments on the recent decision by the Pennsylvania Supreme Court overturning Bill Cosby’s sexual assault conviction. Professor Hamilton argues that the decision illustrates the need for states to reform both civil and criminal statutes of limitations (SOLs) to give sexual assault and abuse survivors their day in court.

Cornell Law professor Sherry F. Colb responds to an observation made by U.S. Supreme Court Justice Clarence in his concurring opinion in Jones v. Mississippi, noting an ostensible inconsistency in the language liberals use in discussing incarceration, as compared to pregnancy. Professor Colb acknowledges the face value of Justice Thomas’s point—that liberals refer to minors seeking an abortion as “women” and minors facing life imprisonment without the possibility of parole (“LWOP”) as “children”—but she points out that the difference in terminology reflects a consistent view that minors are not fully developed and should not be forced to do irreversible “adult” things like carry a pregnancy to term or serve a mandatory LWOP sentence.

Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—describes three kinds of defects and injustices inherent in capital punishment exemplified by the case of Pervis Payne, who is on death row in Tennessee. Professor Sarat points out that the death penalty in the United States is built upon erroneous convictions and miscarriages of justice, the prejudicial use of use of so-called victim impact evidence, and disproportionate targeting of defendants with intellectual disabilities or mental illness.

NYU Law professor Samuel Estreicher and Hofstra Law professor Julian G. Ku comment on a recent decision by a Pre-Trial Chamber of the International Criminal Court (ICC) ruling that the ICC’s jurisdiction extends to territory occupied by Israel during the 1967 Six Day War, namely, the West Bank, Gaza, and East Jerusalem. Professors Estreicher and Ku argue that the tenuous and legally unpersuasive nature of the ICC’s jurisdictional assertion in this case, as well as similarly aggressive findings over U.S. activities in Afghanistan, will only further weaken the tribunal’s overall international legitimacy going forward.

Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—describes ways in which states are attempting to normalize errors that occur during the process of lethal injection. Professor Sarat argues that lethal injection is demonstrably far from the painless form of death it once promised to be, and that it should be abolished in the United States.

Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—argues that life sentences without the possibility of parole (LWOP) are as problematic and damaging as the death penalty. For this reason, Professor Sarat calls upon death penalty opponents to reconsider their support for LWOP sentences.

Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—comments on the news that both houses of the Virginia General Assembly passed legislation abolishing the death penalty in that state. Professor Sarat explains why Virginia’s change in policy is so significant: it has executed more people than any other state and is the first state south of the Mason-Dixon line to abolish capital punishment.

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—and history teacher John deVille argue that George should take the lead in holding Donald Trump accountable for crimes against democracy. Professor Sarat and Mr. deVille point out that a criminal trial with Trump in the dock would be both “a galvanizing national seminar on democratic values” and “a chance for officers of the court to question the President in a forum where he could neither obfuscate nor intimidate.”

In light of the events of January 6, Illinois law professors Lesley M. Wexler and Colleen Murphy identify some preliminary questions raised by private actors sanctioning other private actors for the latter’s potentially criminal activities at the Capitol. In particular, Professors Wexler and Murphy explain why the event gives rise to transitional justice concerns, and through the transitional justice lens, they assess the advantages and disadvantages of private action in this context.

Cornell law professor Sherry F. Colb comments on a movie some have described as one of the best of 2020, The Invisible Man, and describes how the story in the movie offers possibilities for envisioning accountability for domestic violence and other crimes that often receive dismissive treatment under the heading of “he said/she said.” Professor Colb briefly describes the plot of the movie (including spoilers), and explains why the movie is so revelatory.

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—explains the enhanced risk of COVID-19 infection in the federal death row in Terre Haute, not only among inmates but among those necessary to carry out executions. Professor Sarat calls upon the Trump administration and other officials to focus on saving, rather than taking, lives inside and outside prison.

In this second in a series of columns on the U.S. Department of Education’s recent push toward a higher burden of proof in determinations of sexual harassment or assault under Title IX, Cornell Law professor Sherry F. Colb suggests that gendered narratives play a role in people’s willingness to regard an acquaintance rape case as “he said/she said.” Colb describes several examples in which people prefer a story that confirms a pre-existing bias over truth based on evidence.

Cornell law professor Sherry F. Colb comments on the U.S. Department of Education’s recent push toward a higher burden of proof in determinations of sexual harassment or assault under Title IX. In this first part, Colb suggests that men who say “not guilty” in response to a sexual assault accusation are not especially credible and that we accordingly need an explanation for why people find the accuser’s words equally lacking in credibility (and therefore call the dispute a “he said/she said” dilemma for the factfinder).

Cornell law professor Sherry F. Colb comments on a case the U.S. Supreme Court will consider this term that presents the question whether the Eighth Amendment ban on cruel and unusual punishment prohibits sentencing a juvenile offender to life without the possibility of parole. Colb considers the wisdom and constitutionality of imposing such a sentence on a person who was under 18 at the time of his crime.

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—argues that Attorney General William Barr erroneously characterizes the families of victims of violent crimes as a homogeneous group unified in their support of the death penalty. Sarat points out that, in fact, some families of victims oppose the application of the death penalty (for a variety of reasons), so by trying to justify the reinstatement of the federal death penalty as bringing closure to victims and their families, Barr and his political allies are simply using these victims and their families to support his political ends.

Cornell law professor Sherry F. Colb considers the case for occasionally including status—“who you are”—in assigning blame in criminal matters. Colb explains that generally, our penal system prohibits “status offenses,” but sometimes, such as in the case of psychopaths, we are comfortable deciding how to punish a person based at least in part on who they are.