Analysis and Commentary on Criminal Procedure
Justice Alito’s Opinion on Abortion: Not Just the End of Reproductive Rights, But the Downfall of Fundamental Civil Liberties Guaranteed by the Fourth Amendment to All Americans

In this second of a series of columns on Dobbs v. Jackson Women’s Health Org., attorney Jon May argues that the decision threatens certain fundamental rights conferred by the Fourth Amendment. Mr. May predicts that those rights will not withstand the onslaught of law enforcement conduct in entering and searching our homes without a warrant, invading our private thoughts and associations found on our smart phones and computers, or stopping and searching us on the streets without probable cause or reasonable suspicion.

Can Finality Be More Important Than Justice Even If It Means Executing the Innocent?

Amherst professor Austin Sarat comments on the recent decision by the U.S. Supreme Court in Shinn v. Ramirez, in which the Court held that federal judges may not intervene in state cases to protect the Sixth Amendment right to the effective assistance of counsel, even when there is evidence evidence that the condemned might be actually innocent. Professor Sarat points out that the decision demonstrates the conservative Justices’ prioritization of finality over justice and serves only to further erode confidence in and support for capital punishment in this country.

A New Answer to an Old Question

Cornell Law professor Joseph Margulies explains why, when asked how he can defend someone accused of horrible crimes, he no longer uses the response that most criminal defense lawyers use—that a lawyer doesn’t defend their client’s behavior but instead holds the government to its burden by zealously defending their client’s rights. Instead, Professor Margulies responds to that question that he is defending the client’s humanity against society’s impulse to reduce a defendant to their deed, imprisoning them in their past.

Time, the Execution Process, and the Botched Lethal Injection of Clarence Dixon

Amherst professor Austin Sarat comments on the recent botched execution of Clarence Dixon in Arizona, pointing out that the repeated efforts to place the IVs demonstrate that lethal injection is not a humane process. Professor Sarat describes the importance of time in the execution process and argues that courts assessing the start time of an execution (for purposes of Eighth Amendment challenges and Double Jeopardy challenges) should start the clock from the moment of the first physical invasion of the inmate’s body, contrary to the Ohio Supreme Court’s determination that the insertion of IV lines is “merely a ‘preparatory’ step to the execution.”

Fifth Anniversary of Arkansas’s 2017 Execution Spree Is a Good Time to Confront Capital Punishment’s Troubling Flaws

In light of the fifth anniversary of Arkansas’s capital punishment spree, Amherst professor Austin Sarat describes some of the major flaws of the death penalty. Professor Sarat points out that although lethal injection was once touted as a technological miracle that would ensure executions would be safe, reliable, and humane, the practice has had a history marked by problems, mishaps, and mayhem.

Vega v. Tekoh and the Supreme Court’s Conceptual Confusion

Cornell Law professor Sherry F. Colb comments on a case pending before the U.S. Supreme Court that presents the question whether a plaintiff may sue a police officer for an interrogation that violates the rules announced in Miranda v. Arizona and results in a statement that the prosecution introduces at the plaintiff’s trial, which ends in acquittal. Professor Colb argues that whether one views adherence to Miranda as a constitutional requirement or instead as a prophylactic sub-constitutional practice should have little bearing on the outcome of the case.

European Courts Deliver a Wake-Up Call about American Prison Conditions

Amherst professor Austin Sarat describes how courts in Europe, when faced with the question whether to extradite an escaped convict to the United States, have expressed greater concern about the conditions of American prisons than do American courts or legislatures. Professor Sarat argues that it is time for American courts to redress prison conditions and ensure that when we send someone to prison, we respect and protect their constitutional rights.

In the Sentencing of Ahmaud Arbery’s Killers, the Justice System Operated at its Best

Former federal prosecutor Dennis Aftergut argues that the sentencing of Ahmaud Arbery’s killers last week demonstrated institutions and individuals within the judicial system operating at their best. Mr. Aftergut praises Judge Timothy Walmsley in particular for listening attentively to the victim impact statements and for deliberating on them before handing down the sentences.

A Tale of Two Juries

Texas law professor Jeffrey Abramson comments on two jury verdicts last week—the acquittal of Kyle Rittenhouse in Kenosha, Wisconsin, and the conviction of three men who attacked and killed Ahmaud Arbery in Brunswick, Georgia—that demonstrate our country’s division over race, guns, vigilantism, and self-defense. Professor Abramson notes that when evidence is borderline, as it was in the Rittenhouse trial, jurors are “liberated” to decide on the basis of their own sentiments and values. Professor Abramson argues that the rushed jury selection process in the Rittenhouse trial effectively placed the Second Amendment, rather than the individual defendant himself, on trial.

From Boston to Brunswick, Georgia: The Perils of Jury Selection

Texas law professor Jeffrey Abramson explains why the trial judge in the case against the three men who chased and shot to death Ahmaud Arbery should not commit the same mistake that occurred in the Boston Marathon trial—speeding up jury selection to convict obviously guilty defendants, only to have the sentence thrown out on appeal. Professor Abramson argues that while judges may understandably feel frustrated during jury selection in high-profile cases, taking shortcuts during jury selection risks forcing victims, witnesses, and the community to live through traumatic events twice.

Will the Death Penalty Survive the Pandemic?

Amherst professor Austin Sarat observes that a sharp reduction in executions during the COVID-19 pandemic represents a clear departure from the typical response to crisis in the United States. Professor Sarat explores whether this departure signifies the demise of capital punishment, or instead whether, as suggested by Oklahoma’s plan to execute seven people over the next six months, we will see a return to the historic norm.

Abolitionists Must Put Reviving Clemency in Capital Cases High on Their Agenda

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.

What If Edwards v. Vannoy Had Gone the Other Way?

Cornell Law professor Sherry F. Colb comments on the U.S. Supreme Court’s decision in Edwards v. Vannoy, in which it held that a prisoner may not invoke the denial of his Sixth Amendment right to a unanimous jury as a basis for challenging his criminal conviction when filing a federal habeas corpus petition. Professor Colb explains why, if cost/benefit analysis played a role in determining retroactivity, the Court perhaps should have decided that case the other way.

The U.S. Supreme Court Takes a Step toward Defunding the Police

Cornell Law professor Sherry F. Colb comments on the U.S. Supreme Court’s recent decision in Caniglia v. Strom, holding that police may not enter a private home to perform a “community caretaking” function without having a search warrant. Professor Colb suggests that by recognizing limits on the authority of law enforcement officers to enter a home without a warrant in these circumstances, the Court may be implicitly adopting the message of “defunding the police” by reallocating a non-police function to better-suited responders, such as social workers or mental health experts.

The Dreadful Failure of Lethal Injection

Austin Sarat—Associate Provost and Associate Dean of the Faculty and Professor of Jurisprudence & Political Science at Amherst College—comments on the decomposition of the legal injection paradigm over the past few decades, since it was first adopted in Oklahoma in 1999. Professor Sarat observes the evolution of the procedure over time and points out that none of the changes has resolved lethal injection’s fate or repaired its vexing problems.

Virginia Delivers a Rebuke to Trump’s Execution Spree and Points to the End of America’s Death Penalty

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.

Can a Misdemeanor Count as an “Emergency” for Purposes of Skipping the Warrant?

Cornell law professor Sherry F. Colb comments on a case currently before the U.S. Supreme Court that presents the question whether the exigent circumstances exception to the warrant requirement applies when the suspect may have committed a misdemeanor, as opposed to a more serious crime. Colb argues that if the Court believes that a misdemeanor (or a particular misdemeanor) is not important enough to justify the invasion of a person’s home, then it ought perhaps to hold that the police officer in the present should not have entered the suspect’s home, period, with or without a warrant.

What Is a Seizure, and What Is a Holding? The Court Hears Argument in Torres v. Madrid

Cornell law professor Sherry F. Colb comments on two particular aspects of a case in which the U.S. Supreme Court heard oral argument last month, Torres v. Madrid. First, Colb discusses the distinction, for Fourth Amendment purposes, between touching someone directly with one’s hands and touching someone indirectly using an inanimate object. Second, she explains the difference between holding and dicta in a court opinion. Using these two points as illustrations, Colb shows how flexible the Constitution can be, lending itself to very different interpretations.

Narrow Debate About the Death Penalty

In light of the federal government’s resumption of executions, Cornell law professor Sherry F. Colb describes some of the common arguments of proponents and opponents of capital punishment. Colb observes that many of the moral arguments are based on a consequentialist perspective and suggests that a deontological perspective might lead to novel arguments and considerations about the death penalty.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Fels Institute of Government Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more