Analysis and Commentary on Criminal Law
Arizona Case May Change the National Conversation About Race and Capital Punishment

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.”

Alabama’s Latest Steps to Use Nitrogen Hypoxia Recapitulate the Failed Promise of Humane Execution

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.

The Hardest Question

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.

Alabama Needs to Change Course and Clean Up Its Death Penalty Mess

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.

The Wrong Epiphany

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.

South Carolina Tries to Ramp Up Secrecy in a Frantic Effort to Restart Executions

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.

Arizona Takes a Step Toward Abolishing the Death Penalty

Amherst professor Austin Sarat describes how Arizona has recently taken a small but significant step toward abolishing the death penalty, with actions by Governor Katie Hobbs and Attorney General Kris Mayes. Professor Sarat points out that Hobbs’s executive order calling for an independent commissioner to review certain aspects of the death penalty process in that state will shed light on a procedure that thrives only in darkness and secrecy.

What Ann Coulter Doesn’t Know and Doesn’t Want Her Readers to Know About Capital Punishment

Amherst professor Austin Sarat comments on an opinion piece by ultra-conservative propagandist Ann Coulter in which Coulter is trying to revive America’s death penalty based on untruths and half-truths. Professor Sarat explains why the information Coulter cites is at best misleading and at times completely false, and he argues that any outrage should be directed at the death penalty itself, which is rife with problems at every stage.

Imagine We Lived in a Different World

Cornell Law professor Joseph Margulies describes the crucial difference between a world where we ask, “What happened?” and one where we ask, “Who is to blame?” Professor Margulies explains that the first question seeks to identify the many factors that cause something bad to happen, with the goal of preventing that bad thing from happening again; in contrast, the second seeks only to punish.

Neither Biden nor Trump Will Be Charged with any Unlawful Conduct Resulting from Their Possession of Classified Documents, but for Very Different Reasons

Criminal defense attorney and former federal prosecutor Jon May describes the similarities and differences between the possession of classified documents by former President Trump and President Biden. Mr. May argues that neither is likely to lead to charges based on federal criminal statutes, but for vastly different reasons.

No Snowflakes Here: The Cornell University Parole Initiative

Cornell Law professor Joseph Margulies describes the work of the Cornell University Parole Initiative (CUPI), which works with incarcerated persons serving life sentences in New York prisons. Professor Margulies describes the work of CUPI student volunteers and argues that anyone who perceives today’s young people as entitled “snowflakes” should look more closely at what young people are doing and get out of the way for them to fix what older generations have broken.

Arizona Is a New Death Penalty Battleground State

Amherst professor Austin Sarat argues that Arizona’s new attorney general—Kris Mayes—should now seize her opportunity to make good on her promise to put a pause on all executions in that state. Professor Sarat describes Arizona’s recent spate of botched executions and calls upon Mayes to support a death-row inmate’s withdrawal of his request be executed, thereby making Arizona the latest state to confront the troubling issues that have plagued the death penalty across the country.

As America’s Death Penalty Declines, Let’s Not Lose Sight of the Glaring Injustices That Remain

Amherst professor Austin Sarat reflects on capital punishment in 2022, pointing out that while it has continued its decades-long decline, it is still plagued with serious injustices. Professor Sarat argues that as abolitionists litigate to stop death sentences and executions, we must remember that the fight must ultimately be won in the political arena rather than only in the courts.

Lessons from Sam Bankman-Fried’s Brief Stay in a Bahamian Jail

Cornell Law professor Michael C. Dorf reflects on what we might learn about criminal justice systems from FTX co-founder and former CEO Sam Bankman-Fried and his brief stay in a Bahamian prison. Professor Dorf points out that the prison where Bankman-Fried was detained has been described as “not fit for humanity”—not unlike many prisons in the United States and elsewhere. He argues that no one—regardless of wealth or social status—deserves that kind of suffering on top of their term of imprisonment.

Merrick Garland Stays on Offense Against Trumpist Violence

Former federal prosecutor Dennis Aftergut comments on Monday’s news that the January 6 committee approved criminal referrals for former President Donald Trump, John Eastman, and others. Mr. Aftergut argues that consistent prosecution and conviction of those who engage in political violence—not only those who participated on January 6, but also those who have done so afterwards—are vital to deterring future disorder.

It is Time for the Biden Administration to Join the Rest of the World in Moving Against the Death Penalty

Amherst professor Austin Sarat argues that the Biden administration should join the rest of the world in officially opposing the death penalty by supporting the U.N. General Assembly’s resolution establishing a moratorium on executions. Professor Sarat points out that while supporting the resolution would not force the federal or state governments to change the status quo, it would put this country on record as committed to ending the death penalty—a particularly important accomplishment for a President who ran as an abolitionist.

SCOTUS Should Revisit Demeanor’s Role in the Courtroom

UConn School of Law professor Julia Simon-Kerr comments on a case that squarely presents the question whether the courtroom demeanor and body language of a non-testifying defendant can play a role in the jury’s consideration of guilt or innocence. Professor Simon-Kerr points out that despite research showing no evidence that we can learn much, if anything, about a person’s untruthfulness from nonverbal cues, jurors frequently rely on those factors in deciding the credibility of witnesses and, apparently, even the culpability of non-testifying defendants. She suggests that it although it is unlikely the Supreme Court will agree to hear the case, the case presents the Court with a unique opportunity to begin a long overdue reexamination of the privileged role of demeanor in our system of proof.

What the Weinstein Jury’s Lengthy Deliberation Does (and Doesn’t) Mean

Texas Law professor Jeffrey Abramson comments on the trial of disgraced mogul Harvey Weinstein, in which the jury has been deliberating since December 2 without reaching a verdict. Professor Abramson suggests that the jury may simply be working its way through the five weeks of testimony, and the only takeaway from the amount of time it is taking is that the justice system is working.

Why the United States Faces an Uphill Battle Convicting Donald Trump for Unlawfully Removing Government Documents From the White House and Concealing Them at Mar-a-Lago

Attorney Jon May discusses what offenses former President Donald Trump is likely to be charged with, and why the government may fail to convict him for any of those offenses. Specifically, Mr. May addresses the issues with each of the three statutes listed on the search warrant authorizing the search of Mar-a-Lago.

The Defense and a Special Prosecutor Agree About Unfairness in a Missouri Capital Case: Will That Be Enough to Stop an Execution?

Amherst professor Austin Sarat comments on a Missouri capital case in which both the defense lawyer and a special prosecutor appointed to review the case agree that unconstitutional racial bias played a crucial role in the handling of the case. Professor Sarat points out that such agreement is very unusual and that it thus falls to the Missouri Supreme Court to halt the execution so that the issues they have raised can be thoroughly investigated, or else allow the execution to go forward in a move that is perilously close to the state supreme court acquiescing in a lynching.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at the University of... 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 Dwight D. Opperman Professor of Law and Director of the Center of Labor and... 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

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Government at Cornell University. He was Counsel of Record in... more

Austin Sarat
Austin Sarat

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

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

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