Verdict

Amherst professor Austin Sarat comments on the proposal by Oklahoma’s Attorney General and the Director of the Department of Corrections to execute execute six individuals with 90-day intervals between each, in a purported effort to address operational and mental health strains on execution team members. Professor Sarat points out that this plan fails to address deeper injustices within the death penalty system, not the least of which is the significant toll on those involved in executions, as well as the systemic issues of unfair trials and racial bias affecting death row inmates.

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, argues that the U.S. Supreme Court should uphold the decisions of the Colorado and Maine courts that disqualified Donald Trump from running for President under Section 3 of the 14th Amendment based on his role in the January 6, 2021 attack on the U.S. Capitol. Mr. Falvy identifies several ways that the Court could rationalize putting Trump back on the ballot and explains the legal and consequential problems with each. In particular, Mr. Falvy criticizes the superficially appealing “let the people decide” line of thought, pointing out that it is actually highly undemocratic and dangerous; indeed, such dictators as Louis-Napoléon Bonaparte in France, Adolf Hitler in Germany, and Hugo Chavez in Venezuela, each launched a failed coup d’état, endured a short stint in jail, and returned to win power through elections.

Cornell professor Joseph Margulies discusses the groundbreaking prosecution for involuntary manslaughter of Jennifer and James Crumbley, parents of Ethan Crumbley, who killed four classmates in a school mass shooting. Professor Margulies highlights legal and moral complexities surrounding causation and parental responsibility, questioning whether the parents’ negligence in not foreseeing their son’s violent actions, despite clear warning signs, justifies holding them criminally liable for the murders. Professor Margulies also reflects on the broader implications for societal expectations of parental foresight and the limits of criminal law in addressing such tragic events.

UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone comment on a federal lawsuit filed by the Republican National Committee and the Republican Party of Mississippi, among others, challenging Mississippi’s law that counts mail-in ballots postmarked by Election Day but received within five business days thereafter for federal elections. Professors Amar and Mazzone argue that this lawsuit is unlikely to succeed due to the implausibility of its legal theory, highlighting the distinction between the act of voting and the counting of votes, and underscoring the constitutional and statutory framework that grants states broad leeway in election administration, including the acceptance of mail-in ballots.

Cornell Law professor Michael C. Dorf discusses the recent execution of Kenneth Eugene Smith by nitrogen hypoxia in Alabama, questioning the humanity of this method and comparing it unfavorably to other methods like lethal injection and electrocution. Professor Dorf delves into the complexities of the death penalty, including the constitutional implications, the effectiveness of alternative execution methods, and the ethical dilemmas facing death penalty abolitionists and pharmaceutical companies regarding the provision of more humane execution drugs.

Cornell professor Joseph Margulies reflects on the Department of Justice’s recent indictment of four Russian officers for torturing an American in Ukraine, interpreting it as a significant legal and moral statement against torture. Professor Margulies speculates whether this action represents a broader condemnation of torture or a narrower stance against torture when Americans are victims, contrasting it with the U.S.’s own history of torture post-9/11.

Amherst professor Austin Sarat laments the continued occurrence of botched executions in the United States, focusing on the recent introduction of nitrogen hypoxia in Alabama, which resulted in another failed attempt. Professor Sarat describes the disturbing details of Kenneth Smith’s execution, where the promise of a quick and painless death by nitrogen hypoxia was broken, leading to a prolonged and torturous process, thus adding to the history of failed executions with new methods in the United States.

UC Davis Law professor Vikram David Amar defends the University of Illinois’ reinstatement of standout basketball player Terrence Shannon Jr. following a court injunction against his suspension due to allegations of sexual misconduct. Professor Amar argues that the University’s compliance with the court order, which recognized Shannon’s due process rights under the Fourteenth Amendment, was legally sound, and emphasizes that the decision to play Shannon was not influenced by the unproven allegations but rather by a legal obligation to treat him as any other team member in good standing. Professor Amar criticizes commentary by sports journalists like Gary Parrish for misunderstanding the legal nuances and the University’s obligation to adhere to the court’s ruling, noting that the decision to play Shannon is a matter of legal compliance, not a disregard for the seriousness of the allegations.

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, examines the constitutional and political implications of a Colorado Supreme Court ruling that disqualified Donald Trump from running for president in 2024, based on his involvement in the January 6, 2021 attack on the U.S. Capitol. Mr. Falvy discusses the legal and factual issues that the U.S. Supreme Court will have to resolve in the case, and the potential impact of its decision on the country's future.

Amherst professor Austin Sarat argues that the Supreme Court should use the case of Richard Glossip, a death row inmate who claims actual innocence, to declare that the Constitution forbids executing the innocent. Professor Sarat points out the various procedural problems and prosecutorial misconduct in Glossip’s case, as well as the Supreme Court’s precedents on actual innocence claims—which support his argument for addressing this fundamental issue of justice.

Amherst professor Austin Sarat argues that the U.S. Supreme Court should grant review in Warren King’s death penalty case, which epitomizes the persistent racial biases in jury selection, especially in death penalty cases. Professor Sarat emphasizes the significance of the Batson v. Kentucky decision against race-based juror exclusion, critiques its inadequate enforcement, and argues that King’s case, marked by discriminatory jury selection, offers the Court a crucial opportunity to reinforce Batson and address racial prejudice in the legal system.

Cornell Law professor Michael C. Dorf discusses Republicans’ political manipulation of the impeachment process, particularly in the context of Donald Trump’s flawed immunity claims and House Republicans’ baseless impeachment investigations against President Joe Biden and Homeland Security Secretary Alejandro Mayorkas. Professor Dorf emphasizes that impeachment should be grounded in actual high crimes and misdemeanors, not political disagreements or policy choices.

Amherst professor Austin Sarat discusses the movement against life without parole (LWOP) sentences in the United States, highlighting its flaws similar to those in the death penalty system, including racial disparities and the finality of judgment. Professor Sarat commends the Massachusetts Supreme Judicial Court’s recent ruling against LWOP for offenders under 21, signaling a significant step towards reevaluating and potentially ending LWOP sentences, paralleling efforts against capital punishment.

Amherst professor Austin Sarat argues that in Tuesday’s oral argument before the U.S. Court of Appeals for the D.C. Circuit, Donald Trump’s lawyer, John Sauer, contorted the Constitution’s language to claim presidents have absolute immunity from criminal prosecution for official acts, despite Trump’s impeachment lawyers previously stating presidents could face prosecution once leaving office. Professor Sarat points out that the appeals court judges appeared unconvinced by Sauer’s arguments, questioning how his broad immunity claim aligns with constitutional checks on presidential power.

Cornell professor Joseph Margulies reflects on the ethical and legal dilemmas faced by lawyers representing death row inmates who choose to end their appeals and face execution, drawing on his own experience resisting a client’s choice to be executed, driven by the belief that the conviction was unjust and the death row conditions were inhumane. Professor Margulies grapples with the complexities of upholding the law, respecting client autonomy, and questioning whether intervening in a client’s decision to volunteer for execution is always the right course of action.

Amherst professor Austin Sarat discusses international condemnation of Alabama’s planned execution of Kenneth Smith using nitrogen hypoxia, a method untested in executions—highlighting the broader issue of the United States’ isolated stance on capital punishment among constitutional democracies. Professor Sarat details Smith’s case, noting a previous failed execution attempt and the criticism from UN experts, the Catholic association Community of Sant’Egidio, and the European Union, all emphasizing the inhumanity and potential violation of international human rights laws in using such an experimental method for execution.

UC Davis Law professor Vikram David Amar comments on the Wisconsin Supreme Court’s recent decision invalidating the state’s legislative district lines based on its finding that they were unconstitutional due to non-contiguous territories, a decision criticized by conservatives as partisan. Professor Amar points out that this ruling, focused only on state legislative districts, does not directly implicate the “Independent State Legislature” theory discussed in the U.S. Supreme Court’s Moore v. Harper case, as it pertains to state, not federal, elections. Furthermore, Professor Amar argues that the decision’s compliance with straightforward state constitutional text suggests federal courts are unlikely to find it violates due process or republican government principles, illustrating the limited role of federal oversight in state court interpretations of state law post-Moore.

Amherst professor Austin Sarat discusses how Special Counsel Jack Smith’s recent filing regarding Donald Trump’s claim of presidential immunity is grounded in arguments previously made by Republican Senator Mitch McConnell. McConnell, on the Senate floor in 2021, recognized Trump’s moral and practical responsibility for the January 6 events, pointed out that impeachment is not the only avenue for accountability, and acknowledged that Trump, as a private citizen, could be subject to criminal and civil litigation for his actions while in office.

Amherst professor Austin Sarat comments on the divergent paths of Florida and Ohio with respect to capital punishment in those states. Professor Sarat argues that it is time for America to make up its mind on the death penalty and either follow Ohio’s path toward a future without capital punishment, bringing this country into line with the community of nations, or else follow Florida’s example by expanding death sentences and executions.

University of Pennsylvania professor Marci A. Hamilton discusses the transformation of religious liberty in the United States into a force that can harm others, critiquing the misuse of the Religious Freedom Restoration Act (RFRA) and the rise of radical religious liberty law. Professor Hamilton argues that while religious liberty includes the absolute right to believe and speak about one's religion, it should not extend to conduct that harms others, warning against the dangerous trend of using religious liberty as a weapon against marginalized groups and advocating for a return to the original principles of the First Amendment.