Verdict

Amherst professor Austin Sarat comments on the number of bills recently introduced in many red states to curb prosecutorial discretion when it is exercised in ways that do not conform to their tough-on-crime agenda. Professor Sarat argues that prosecutorial discretion is an indispensable component of a society governed by laws, and that these bills violate the separation of powers, threaten to politicize prosecution, and, in so doing, undermine the rule of law.

Former federal prosecutor Dennis Aftergut comments on the public censure of Trump lawyer Jenna Ellis for her misrepresentations on Fox News and elsewhere regarding the outcome of the 2020 Presidential Election. Mr. Aftergut points out that now, thanks to Jenna Ellis, we have a discipline case on the record against a lawyer whose only misconduct was in misleading the public in the public square.

Stanford Law visiting professor Joanna L. Grossman and professor Lawrence M. Friedman explain why the Comstock Act, an anti-vice law passed 150 years ago but never removed from the books, has recently become noticed again with Republicans’ renewed efforts to ban abortion nationwide. Professors Grossman and Friedman describe the law and the man behind the law, Anthony Comstock, and they argue that the so-called ghost law should remain dead.

Cornell professor Joseph Margulies argues that the only condition that justifies a prison sentence longer than 20 years is an ongoing threat to public safety, to be determined after that sentence has been served. Professor Margulies points out that, contrary to what many people think, individuals convicted of some of the most serious offenses, and who have already served exceptionally long terms, are often the people who are most apt to be valuable and contributing members of society, and who are best prepared for freedom.

In this second in a series of columns about law school rankings, Illinois Law dean Vikram David Amar explains how rankings for law (and medical) schools can benefit from innovations in college sports rankings. Specifically, Dean Amar suggests greater reliance on numerical, analytic metrics to help with assessments, less frequent updating of the rankings, and enabling consumers to adjust the weight of various ranking factors according to what they value in a school.

Amherst professor Austin Sarat comments on the recent changes in Oklahoma that suggest, perhaps surprisingly, that the state may be poised to abolish the death penalty. Professor Sarat observes that the 2022 election results, the objections of religious leaders, doubts among conservative politicians, and declining public support may signal a tide change in a state that has long been a leader in using death as a punishment.

Cornell Law professor Michael C. Dorf comments on the U.S. Supreme Court’s decision last week in Cruz v. Arizona, in which a 5-4 majority of the Court delivered a rare victory to a capital defendant. Professor Dorf describes the circuitous path Cruz’s case took and how it highlights an inadequacy in the standard for viewing the “adequacy” of state law grounds for denying federal judicial intervention.

Amherst professor Austin Sarat comments on two cases currently working their way through the Arizona court system, in which defense lawyers from the Capital Unit of the Maricopa County Office of the Public Defender are raising innovative arguments based on the systemic racism in all aspects of American life. Professor Sarat argues that these carefully crafted and extensively documented motions call on judges to confront the reality of America’s racist past and continuing institutional racism before allowing the government to carry out any more “legal lynchings.”

Amherst professor Austin Sarat comments on recent news that Arkansas was “close” to completing the protocol needed to carry out executions by nitrogen hypoxia. Professor Sarat points out that nearly every method of execution was touted as “humane” when it was first introduced, but as history has proven time and time again, there is no such thing as a foolproof or humane execution.

Cornell professor of government Joseph Margulies describes the conundrum of reconciling the fact that prison sentences over 20 years are generally pointlessly cruel and unjust with the fury we feel against those who commit senseless mass murders. In particular Professor Margulies points to a new report by The Sentencing Project in support of their longstanding campaign to reduce the maximum prison sentence in the United States to 20 years, released on the same day that Erie County, New York, Judge Susan Eagan sentenced Buffalo shooter Payton Gendron to ten concurrent life sentences plus an additional 25 years to be served consecutively.

Amherst professor Austin Sarat comments on recent reporting that Donald Trump wants to use the firing squad, mass executions, and videos to heighten the drama of capital punishment. Professor Sarat argues that what Trump says about executions reveals the depth of his fascination with ghoulish things and that his latest death penalty musings offer a frightening reminder of the cruelty he would unleash if he is returned to the Oval Office.

In this fifth column in a series about the murder of Tyre Nichols by Memphis police officers, Cornell professor of government Joseph Margulies argues that, for any good to come of Nichols’s death, we must judge his killers in a forgiving spirit. Professor Margulies explains what it means to judge in a forgiving spirit: to assess the actions of another anchored in the unshakeable belief that those who have done wrong are nonetheless one of us.

In light of recent news that the U.S. shot down a Chinese surveillance balloon, Cornell Law professor Michael C. Dorf explains the differences between spying by ballon and spying by satellite and explores some of the murky legal areas with respect to sovereign airspace, outer space, and military uses of both. Professor Dorf points out that modern satellites can capture remarkably clear images of Earthbound sites, but a comparably equipped surveillance balloon, in virtue of being ten or more times closer to the Earth’s surface, can necessarily capture even greater detail.

Cornell Law professor Joseph Margulies points out that the murder of Tyre Nichols challenges the oversimplified conception of authority and race that prevails in this country. Drawing upon the language of historian Robin Kelley, Professor Margulies argues that police violence is the end result of a racialized processnot merely an expression of anti-Black racism by white police officers.

Amherst professor Austin Sarat comments on a recent petition by 170 faith leaders in Alabama asking Governor Kay Ivey to create an independent commission to study and address Alabama’s death penalty problems. Professor Sarat describes the recent botched executions in that state and laments that their eloquent appeal seems likely to fall on deaf ears in a state that is not yet ready to clean up its death penalty mess.

Cornell Law professor Joseph Margulies points out that the Memphis police officers who beat Tyre Nichols to death were doing exactly what the SCORPION unit of the department was supposed to do. Professor Margulies argues that until we collectively quash the belief that “we” are threatened until “they” are brought to heel, society will futilely pursue public safety while disregarding public suffering.

Cornell Law professor Joseph Margulies observes that the Memphis Police Department’s Policies and Procedures document is missing an entire section called “Response to Resistance,” which sets the rules governing the use of force by a Memphis officer, including deadly force. Professor Margulies points out that adopting or amending rules is not enough to solve the problem that led to the murder of Tyre Nichols by Memphis police officers; rather we police culture must change. Indeed, Margulies argues, the SCORPION unit was doing exactly what Memphis leaders inside and outside the Department wanted it to do.

In this first of a series of columns on the controversy over the rankings of academic institutions, Illinois Law dean Vikram David Amar explains the source of the controversy and describes some of the inconsistencies among the critics—among whom he counts himself. Dean Amar points out that academic rankings might look to sports rankings to see how the latter solves some of the issues inherent in prominent national rankings.

Amherst professor Austin Sarat comments on the many attempts by South Carolina to resume executions in that state. Professor Sarat describes the recent history of capital punishment in that state and notes that a recent decision by the South Carolina supreme court put on hold a case involving death row inmates’ challenge to the state’s attempt to use the electric chair and the firing squad.

Former federal prosecutor Dennis Aftergut comments on the decision by the College Board, which certifies Advanced Placement (AP) high school curricula, for acquiescing to Florida Governor Ron DeSantis by revising the curriculum in African American History. Mr. Aftergut argues that, by acceding to DeSantis’s bullying, the College Board has short-changed freedom of thought for the next generation of high school students and has helped erode our pluralistic future.