On the first day of his second term, President Donald Trump issued an executive order requiring the Bureau of Prisons to “ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.” Issued alongside a record 26 other orders that day, it was an unsurprising development, because Trump had made this issue one of the centerpieces of his 2024 campaign.

The fate of that executive order, as well as the US Bureau of Prisons’ (“BOP”) memoranda implementing the order, is now before the Supreme Court in a case called Trump v. Kingdom. And, while this case obviously has high stakes for incarcerated transgender people specifically, the Court’s resolution of this case could potentially have far greater reach — cutting off many cis and transgender people’s access to healthcare while they are incarcerated.

That’s because one of the central questions in Kingdom — though this issue is not yet before the justices — is when the Constitution requires prisons to provide medical care to incarcerated people. In Estelle v. Gamble (1976), the Supreme Court held that the Eighth Amendment’s ban on “cruel and unusual punishments” imposes on the government an “obligation to provide medical care for those whom it is punishing by incarceration.” People in prison, after all, cannot simply drive themselves to the hospital if they get sick. If the prison does not give them adequate medical care, they will suffer untreated and potentially die.

For procedural reasons, the Court is unlikely to opine on whether Estelle requires prisons to provide gender-affirming care to trans people right away. But the question of when the Eighth Amendment requires prisons to provide medical care to incarcerated people is front and center in the Kingdom case, which means the Court could potentially use Kingdom to limit all imprisoned people’s access to healthcare — or even to undercut the Constitution’s protections against cruel and unusual punishments more broadly.

Ironically, this case also arises out of a famous political blunder by pro-trans advocates. In 2019, when then-Sen. Kamala Harris was seeking her party’s 2020 presidential nomination, the ACLU circulated a questionnaire to candidates that asked if they would use presidential authority “to ensure that transgender and nonbinary people who rely on the state for medical care — including those in prison and immigration detention — will have access to comprehensive treatment associated with gender transition, including all necessary surgical care?” 

Harris responded that she would, and also said that she “pushed the California Department of Corrections and Rehabilitation to provide gender transition surgery to state inmates” while she was state attorney general. 

Years later, during his 2024 debate with Harris, Trump claimed that the then-vice president “wants to do transgender operations on illegal aliens that are in prison.” And not long after, his opposition to gender-affirming care for trans people in prison became a key part of his campaign.

It’s unclear why the ACLU thought it was a good idea to shine a light on this issue in 2019 because, at the time, the BOP provided gender-affirming care to people in federal prison. The ACLU — which represents the pro-trans side in the Kingdom case — now argues that transgender people in federal prison have had access to at least some forms of gender-affirming care “since at least 1992.”

Indeed, Trump’s own administration concluded in a 2018 memo that the Bureau of Prisons’ “statutory mandate to provide basic medical and mental health care” to incarcerated people obligated it to provide “pharmaceutical interventions (e.g., cross-gender hormone therapy), hair removal and surgery (if individualized assessment indicates surgical intervention is applicable)” to transgender people in prison if their doctors determined that these interventions are “medically necessary care.”

In any event, regardless of why Trump fixated on cutting off trans healthcare for people in federal prison, Kingdom is now before the Court. That means that the fate of trans people in prison — and, if the Eighth Amendment issue eventually reaches the Court, all incarcerated people — is now in the hands of a Republican Court that is often hostile to trans litigants, and that has, at times, signaled that it wants to drastically roll back the scope of the Eighth Amendment.

What are the legal issues in the Kingdom case?

At least since Estelle, the Court has held that people who are incarcerated are not also sentenced to live and die without medical care. As the Court said in Brown v. Plata (2011), “a prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.”

Under Estelle and Brown, transgender people often have a right to gender-affirming care during their incarceration. As the US Court of Appeals for the Ninth Circuit held in Edmo v. Corizon (2019), such a person must show that they have a “serious medical need” for such care — typically by demonstrating that the care was prescribed to them by their health provider. But the Constitution does not permit prisons to deny medically necessary care to incarcerated people.

In Kingdom, the ACLU raised this Eighth Amendment argument in the lower courts, but those lower courts ruled in favor of transgender people in prison on different, much more technical legal grounds.

For over three decades, from at least 1992 to 2025, according to the ACLU’s brief to the justices, the BOP provided at least some gender-affirming care, including hormone therapy, to transgender people. This matters because, when a federal agency changes its policies, a federal law typically requires it to “examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.” This explanation often must explain the agency’s justification for “disregarding facts and circumstances” that justified the previous policy.

Both the ACLU and the lower courts that heard Kingdom argue that the Trump administration did not comply with this obligation when it cut off care for trans people in prison. 

Among other things, the district court that heard this case determined that the administration cited “zero evidence from its own medical or mental health care professionals to support its conclusions” against providing transgender healthcare. While the Trump administration argues that providing gender-affirming care makes prisons less safe, the district court also noted that “the government has not cited a single instance of gender-affirming care giving rise to safety concerns despite having provided such care for many years.”

Is this a persuasive legal argument against the Trump administration’s new policy? I think it is. And so did three federal judges that previously heard the Kingdom case. But the fate of trans people in prison is now in the hands of a Supreme Court that rarely rules in favor of transgender litigants, and that has a history of handing down legally incoherent opinions that are inconsistent with the Court’s own precedents, and that also deny legal rights to trans people.

The current Court’s uncertain commitment to the Eighth Amendment

Because the lower courts that heard Kingdom did not rule on the Eighth Amendment question, Kingdom should not currently give the justices an opportunity to roll back Estelle. But, in the likely event that this Court rejects the ACLU’s argument that the Trump administration did not adequately explain its new policy, the case will return to the lower courts and the Eighth Amendment issue will be fully litigated — teeing up the Eighth Amendment question for the justices to decide in the near future.

This issue could arise, moreover, at the exact moment that some justices are pushing for sweeping changes to how their Court understands the term “cruel and unusual punishments.” Indeed, at least some of the Supreme Court’s recent Eighth Amendment precedents suggest that the Republican justices want a wholesale rewrite of the Court’s previous precedents laying out what constitutes cruel and unusual punishment.

Since the mid-to-late twentieth century, the Court has held that, in Chief Justice Earl Warren’s words, the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Thus, as certain forms of punishment grow more uncommon, they become more constitutionally dubious.

This “evolving standards of decency” framework is front and center in nearly every major Supreme Court decision interpreting the Eighth Amendment for the last five or six decades, including Estelle.

In Bucklew v. Precythe (2019), however, the Court’s Republican majority seemed to abandon this framework. Although decades worth of pre-Bucklew decisions established that a punishment is unconstitutional if it is considered cruel and unusual today, Bucklew suggested that a method of punishment is unconstitutional only if it “had fallen out of use” at “the time of the founding.” 

Bucklew did list some methods of punishment that fail this test, but they are things like “disemboweling” or “burning alive.”  

Thus, if taken seriously, Bucklew’s new approach to Eighth Amendment cases would dramatically expand the government’s power to impose harsh punishments. The late Justice Antonin Scalia, for example, argued that a Bucklew-like approach to the Eighth Amendment does not prohibit the government from executing most intellectually disabled offenders, and that it does not limit the government’s ability to impose excessive punishments for minor crimes.

In fairness, some of the Court’s post-Bucklew decisions are inconsistent with the framework the Court laid out in that case. So at least some of the justices who joined Bucklew may have since decided that it’s a bad idea to toss out the Court’s entire framework for Eighth Amendment cases. But Bucklew was one hell of a warning shot over the bow of the Eighth Amendment. And the mere fact that the Bucklew decision exists means that advocates for humane punishments must hold their breath any time this Court is asked whether a particular punishment is cruel and unusual.

In the worst-case scenario for people in prison, a case like Kingdom could inspire the Republican justices to overrule — or, at least, drastically limit — decisions like Estelle and Brown. That would mean that all incarcerated people, regardless of their gender identity, could lose access to medically necessary care unless the government decides to give it to them as an act of grace.

Late last month, the state of Tennessee attempted to execute Christa Pike, a woman who has been on death row for decades after killing a classmate as a teenager. 

The execution failed: Pike survived two doses of the lethal injection drug pentobarbital, making her the first person ever to do so.

The botched execution comes at a strange moment for capital punishment in America. Support for the death penalty has been declining for decades. And for a long time, the number of executions was falling, too. But since 2021, executions have been increasing again. The recent surge has been driven largely by one state: Florida.

According to Pamela Colloff, who covers the criminal justice system for ProPublica and wrote about Florida’s use of the death penalty for New York Times Magazine this summer, 40 percent of the executions conducted in the US last year were in Florida.

“There are so many things that make the administration of the death penalty interesting and unique in Florida,” Colloff explained on a recent episode of Vox’s The Gray Area podcast. “Among active death penalty states right now, Florida is unique in that one person determines, from the hundreds of men on death row, who will receive an execution date, and what that execution date is.”

I spoke with Colloff earlier this month following Pike’s failed execution about what happened in Tennessee, what’s driving Florida’s recent zeal for executions, and why victims’ families are often unsatisfied by the death penalty process. 

Below is an excerpt of our conversation, edited for length and clarity. There’s much more in the full podcast, so listen to The Gray Area wherever you get podcasts, including Apple Podcasts, Pandora, and Spotify. (This interview also appeared more recently on Vox’s Today, Explained podcast.)

We’re taping shortly after news came out that a woman in Tennessee who was on death row, authorities attempted to put her to death. They gave her two doses of lethal injection medication, and she survived. 

How much of the decline in the use of the death penalty has to do with, in your estimation, people feeling like there’s no way to do it that’s humane? 

This is the second botched execution in Tennessee this year, just to give you a sense of things. This is more common there than in other states. They’ve changed their drug protocols and we don’t know a lot about what went wrong with Christa Pike. In May, it was an issue with accessing veins, which can be an issue with lethal injection. 

I think it’s also important for people to remember that we had the electric chair as the method of execution through the ’80s and into the ’90s in some places. While [lethal injection] is considered a far more humane, quote-unquote, way to do this, we can see that nothing is perfect. 

I will say that while the issues of botched executions are very important, and I think there are some other ones coming up to be concerned about, I am more interested in how it is that other errors are made, that other people end up with the ultimate punishment when that perhaps was not the right punishment for what occurred.

You’ve also written that death penalty convictions are just expensive, right? And on top of that, DNA evidence has made it clear that many of the people who were being convicted were not guilty, or there wasn’t strong enough evidence to convict them. How do you think about that mix of factors?

Florida, which I’ve spent a lot of time writing about, is the leading place in America by a mile in terms of the number of executions, and has a very large death row. Florida’s also the leader in wrongful death row convictions. Just to give you a sense of things, Florida holds the distinction of 30 death row exonerations.

What that means is in the modern era — the past roughly 50 years — there have been 30 men who were given dates of execution who now walk free. And for anyone who pays any attention to how the criminal justice system works and how incredibly difficult it is to overturn a wrongful conviction, if we have 30 people in Florida who have that distinction, we know that there are many more.

What’s going on in Florida? When did you realize that something was different there?

It really ramped up last year. Last year, Florida executed 40 percent of the people who were executed in the US in the last calendar year. In this year, there have been 16 men who’ve been executed in Florida so far. 

Just to give you a comparison, Texas is the next state with the highest number of executions, and they’ve executed six men in that time. We already have outlier states, primarily southern states, and then we have Florida being the ultimate outlier.

There are so many things that make the administration of the death penalty interesting and unique in Florida. The thing that fascinated me the most is, among active death penalty states right now, Florida is unique in that one person determines, from the hundreds of men on death row, who will receive an execution date, and what that execution date is.

Who is it?

Gov. Ron DeSantis. I went back and looked at what were the patterns here, what were the things guiding Gov. DeSantis’s thinking in setting these dates, and was fascinated to see and very troubled to see that there are a number of men who’ve been there so long.

They’ve been there since the 1970s. These are men who were convicted when Gerald Ford was president, just to make this real to people. But the dates are not being set among the men who are what are called death-eligible, meaning that they’ve gone through all their appeals. They aren’t being done chronologically.

There’s no rhyme or reason to the process. And so there’s this speculation game among victims’ families, prisoners, their advocates about who will be next. And men can sit there on death row for decades with that hanging over them, and that is a Florida phenomenon.

You wrote about Florida’s death row turning from something like a purgatory where people stay for a long time into something closer to an assembly line, right?

I was so struck by the fact that in Florida, in order to have this pace of executions, there were people who were receiving their dates 30 days, sometimes fewer, from their execution dates. 

Just to give people a sense of why that is unusual, there are so many things that kick into gear when a death warrant is written. There are numerous legal maneuvers and next steps that happen in the courts. To give you a quick example, there was one defendant in Florida this spring who, five days before he was scheduled to be executed, was finally granted the ability to test DNA evidence in his case that had gone untested.

He had great lawyers who didn’t sleep to make that happen, but that it came as close as five days to his execution date. I think that should give us all pause about how fast this is moving. 

You have multiple people in the queue at the same time. There’s a place — a different unit than Florida’s death row — that you’re taken to once you get your date, called death watch.

Tell me about death watch. What does it look like and what does it feel like?

Death watch is roughly 30 feet from the execution chamber. There are three cells. When you receive your date, you are taken from death row to death watch where you’re put — I don’t want to say solitary because if there are one or two other men who are held there — but you’re in a far different situation than you would be on death row where there are guards and other people you know.

From that point forward, there are roughly 30 days where you are held within steps of where this will take place. To me, it was chilling that when I was doing my reporting in the spring on the story that I published this summer, all three cells were filled, and as soon as one person was executed, the pattern was that often the next day a new death warrant would be signed, and there would be a new person in place.

Why do they do that? Why do they put these people next to the place where they’ll die?

That’s one of the many questions I had about that. We talk about not wanting to have cruel and unusual punishment. Our Constitution does not uphold that. But it’s such a unique kind of mental torture, I think, to be 30 feet from where you’ll be put to death.

The other thing I was struck by was the waiting aspect. If you’re on death row, again, you always have this hanging over you. I talked about the way in which, when you’re in that kind of sensory deprivation, you become highly attuned to sounds and smells and things like that.

I interviewed someone who’s not on death row anymore, whose sentence was commuted, who talked to me about recognizing that jangle of keys and the steps that this group of people who come to deliver the death warrant take, and knowing that someone is about to be served with a death warrant, but not knowing, “Is it me? Is it the guy next to me? Is it someone down the hall?”

I just want to say, I understand that there’s a counterargument to all of this, which is that these are people who most often committed terrible crimes. Their victims did not know when they were going to be killed.

I do think, however, as a state that administers this thing, there has to be a rhyme or reason to this. Otherwise, you have total chaos, including for victims’ families, who never know. Are they going to wait one month? Are they going to wait 15 years? They don’t know.

In October 2024, students at Cornell University received a campus crime alert about a reported sexual assault. At the time, it was just a campus story. Nearly two years later, on September 16, the victim, known only as “Jane Doe,” filed a civil lawsuit that brought national attention to her story. People across the country are asking what happened and why criminal charges never followed. 

Doe alleges that seven men drugged and sexually assaulted her at the Chi Phi fraternity house two years ago. Her lawsuit also accuses the university, fraternity and sorority organizations, and a local bar of failing to protect her. 

The lawyers for several of the men have denied the allegations and any wrongdoing. Cornell says its disciplinary actions led to suspensions and expulsions for some of the young men, and that the Chi Phi fraternity remains barred from campus. 

Doe went to campus police in November 2024, and the district attorney’s office reviewed her account and declined to bring charges. Tompkins County District Attorney Matthew Van Houten has said that what she described to Cornell police didn’t meet the state’s requirements for criminal charges. 

Van Houten reopened the investigation late last month while continuing to defend his original decision to not pursue charges, but it’s now out of his hands: On Thursday, New York Gov. Kathy Hochul named the state attorney general, Letitia James, as special prosecutor to investigate the allegations, saying she had “lost faith” in Van Houten. 

To break down why Van Houten didn’t pursue the case at the time and what should have happened instead, Today, Explained co-host Noel King spoke with Lauren Hersh, a former Brooklyn prosecutor who led the office’s sex trafficking unit and CEO of World Without Exploitation, about how authorities handled Jane Doe’s allegations, the limits of New York’s consent laws, and what needs to change. 

Hersh also explains where she believes the case should go next and what a special prosecutor can do to investigate (the interview took place prior to James’s appointment). 

Below is an excerpt of Hersh’s conversation with Noel edited for length and clarity. There’s much more in the full podcast, so listen to Today, Explained wherever you get podcasts, including Apple Podcasts, Pandora, and Spotify.

I want to start with what we know in 2024. A young woman who we know as “Jane Doe” goes to the Cornell campus police and says she had gone to a frat house while under the influence of alcohol. 

At the frat house, she was given more alcohol and ketamine. Several men had sex with her while she was intoxicated. This is what she tells Cornell campus police. What, in your view, is supposed to happen next? 

There are a number of things that could happen. What I would say about these cases is there is no perfect scenario of what is supposed to happen, because what is critically important is we listen to the desire of the survivor. 

We want to take this at her pace. We want to be guided by her wishes. We want her to decide if she is ready to go forward, if she wants to speak to campus police, the Title IX office, if she wants to speak to the local law enforcement. There are a lot of variables here, but for me, what is critically important is that we’re listening to the survivor and what she ultimately wants to happen. 

In the present day, the district attorney who was involved has said that his office reviewed Jane Doe’s statement at the time and found at the time that what she described didn’t meet the legal definition of a crime. 

I think people want to understand, Lauren, how is that possible? 

To be really candid with you, Noel, this is an area that seems super unclear to me because the role of the district attorney in that moment is to investigate. 

When you first get a case file, you first get a victim statement, and especially with facts as horrific as these facts are, or our understanding of this six-page document that the DA read — I would never say that this is a clear-cut case where there’ll be a conviction at the end. We never know that. 

What I can say with 100 percent certainty is if you get a document like that, as a prosecutor, that is a significant investigative lead. And so, as a prosecutor, what I believe to be good practice is starting to pull the layers back, trying to understand what transpired here. Interviewing the victim. That feels critical. That never happened. We now know that there are all these text messages that were shared between these boys, and the prosecutor’s now saying, “I didn’t know about the text messages.” 

It’s my understanding that there were a lot of boys on that particular text thread. And so a good investigator would have gone to that fraternity house and tried to interview some of those boys, tried to understand what were the contemporaneous statements made at that time. Were there any text messages? Was there any social media activity? And I believe that had they done that in a timely fashion, they likely would have come up with these text messages at that time and not two years later.

What you’re saying is interesting because the DA has come out publicly and defended himself by saying, essentially, the details of this lawsuit, which was filed in September of this year, are different from the details in the young woman’s 2024 statement to the police. 

He has used that in his defense, right? “Here’s what I knew at the time versus what this young woman is saying today.” I think I hear you saying that maybe that’s not an excuse?

You’re asking about the inconsistent statements, and I find it troubling that the DA is leading with this notion that the victim has inconsistent statements because that feels to me like here we are making excuses and blaming the victim. 

To my knowledge, the DA has not yet interviewed this victim. Perhaps he’s talking about the civil complaint, which I would think is written in a way where she has worked with her lawyer to put this together. And the initial statement, the initial six-page document that the DA read, my understanding is that it is basically a summary of a conversation. 

Inconsistencies come in all shapes and sizes, so it’s hard to know exactly what we’re talking about here, but it is very common for there to be some inconsistencies. That is not a dealbreaker, despite the fact that this prosecutor wants the public to believe that it is. 

What do you make of the prosecutor speaking publicly in the way that he is at this moment?

I find it rather confusing. I’m not really understanding why he is doing a media tour rather than sitting in his office doing the work, interviewing this particular victim, interviewing witnesses, seeing what evidence actually exists.

It seems to me that the DA has gotten to a conclusion before he’s done the work in actually investigating the case, and it is deeply troubling. And I think the governor should consider appointing a special prosecutor because I am not certain, based on this media tour, that this DA is able to give this particular survivor a full and fair investigation of the facts. 

Drugs and alcohol are central to this case, right? The young woman admits she had been drinking and she was using ketamine. Under New York law, how does that affect whether or not someone is believed to be capable of consenting to sex? 

New York law is actually really problematic here. It’s a place where I believe we are desperate for a legislative fix. I think that there have been a lot of advocates who’ve been championing a correction to this voluntary intoxication loophole for a lot of years, and we’ve not been able to get it. 

New York law makes it very, very hard to prosecute a person when the victim is voluntarily intoxicated, but not unconscious, and this new law would allow the prosecutors the ability to bring cases when the victim is so severely intoxicated but not physically helpless and where a reasonable person should have known the victim’s condition. 

In this particular case, based on what we’re hearing, she was in a condition where a reasonable person should have known her condition. And so in this particular instance, the DA is right. This is a very, very hard case to prove in this moment, but I’m a big believer. We don’t not prosecute cases because they’re hard cases. But at the same time, we know that a change to the law is critically important. 

You clearly want more investigation here. What questions do you want asked? Who do you want to be [interviewed]? 

Before I say who and how and what that investigation looks like, I think it’s really important to say that when two years have passed and the DA did not investigate these cases immediately, we have a big problem on our hands.

The fact that the DA did not investigate this from the moment he found out about this, it’s really problematic because as we know, evidence disappears, memories fade. When you’re dealing on a college campus with a specific culture, there may be a narrative that takes hold. And so it’s important to talk about the time lapse and how that harms the case. 

That said, I still believe that the investigation is critically important. I don’t believe that this DA is the right person to do the investigation. I think a special prosecutor should be appointed. And then I think that the prosecutor and law enforcement should be interviewing everybody who was in that fraternity on that night. Anybody who saw this victim before, saw this victim after. Were there any statements in the immediate aftermath of her leaving that fraternity? Was there an outcry witness? We know that some text messages have come to light. Are there other text messages? I suspect that there are. 

I’d want to interview as many of those boys as possible to understand what was going on because some of those text messages that have come to light — one says, “Free pussy” — don’t sound like a mindset that is engaging in consensual sex. 

I think it is critically important that we understand all of the correspondence of that night. I think we want to see what is out there that helps us get closer to understanding what transpired that night. 

I’ve seen two lines of thinking about this. One is that this is a horrific incident that never should have happened, but it is in some ways singular. But I’ve seen another line of thinking that says, “No, this is a systemic failure. This kind of thing goes on on college campuses, and the steps that follow the outcomes are often the same.”

I wonder if you think this is a systemic failure, and if you think it is, what would need to be done to fix this problem? 

That’s a big question. I do think it’s a systemic failure. I also think it’s a cultural failure. And the reason that I would say this is because I don’t think this is isolated to this specific college campus. I think that sexual assault is happening across the country on college campuses everywhere.

In terms of additional systemic failures, I’ve been working with the Epstein survivors for the last year and a half, so I’ve seen so many systemic failures, so many prosecutorial failures, so much failure with law enforcement. I think that this is yet another example of prosecutorial failure. 

I think the law enforcement failed this young person — the fact that there’s no investigation that happened immediately in the aftermath of this incident, no investigation. We just continue to fail survivors all over the place, and we have to start doing better.

“In what world,” New York Gov. Kathy Hochul asked on Friday, “would the police learn from a victim that she’d been literally gang raped while she was intoxicated by five men in a fraternity house and not elevate those allegations to the district attorney?” 

Hochul was speaking about the case of a former Cornell student who said she was raped by several members of the university’s Chi Phi fraternity in 2024. At the time, the district attorney filed no criminal charges.

The case has rocked the nation and forced a renewed reckoning over how sexual assault is dealt with in higher education. While the district attorney has defended his handling of the case, many politicians and legal experts are now examining whether certain details of the alleged victim’s account were neglected, and prosecutors have reopened the case.

Amy Wang is a staff reporter at the Washington Post who’s been covering the story over the past week. She spoke with Today, Explained co-host Noel King about what allegedly happened on the night in question, what happened afterward, and what we still don’t know. 

Since the two spoke, New York state Attorney General Letitia James has also been assigned to oversee the case and said it is now “an active criminal investigation.” As new information comes to light, further legal action could be taken. 

Below is an excerpt of the conversation between King and Wang, edited for length and clarity. There’s much more in the full podcast, so listen to Today, Explained wherever you get podcasts, including Apple Podcasts, Pandora, and Spotify.

In October of 2024, a young woman went to a fraternity house near Cornell University’s campus. Who is this young woman, and why did she go to the frat house that night?

The young woman is only identified in documents as Jane Doe, so we don’t know her name. She was, at the time, 20 years old. She was a sophomore at Cornell. And around 11 pm on the night of October 19, 2024, this Jane Doe goes to a bar on campus, and then, after that, goes to the Chi Phi fraternity house to hang out with a friend. 

She said that she was already pretty intoxicated at that point, and she’d had maybe 10 drinks in about three hours. Her friend at the fraternity house hands her a beer. After that is where she alleges that another member of the fraternity pressured her into taking drugs, specifically ketamine and marijuana, and drinking more alcohol. She alleges that two members of the fraternity assaulted her, and that one of them later sent a Snapchat message out to active Chi Phi members. The message is pretty graphic, but essentially invites them to join in, and several did.

In about three weeks, this young woman was going to go to the Cornell campus police and report what happened that night. But in the interim, what was going on? What was happening?

We now know, based on reporting by the New York Times and CBS News, this young woman was a member of a campus sorority, so she went to a member of her sorority and was trying to make sense of what happened. She was still processing it in real time. She wasn’t using, according to their reporting, the word “rape” or “assault.” And she was also seeing rumors circulating around campus about what had taken place at the fraternity house and was growing concerned about how they portrayed her. 

She, in the interim, also received a text message from one of the seven men at the fraternity essentially apologizing for how things went down the other night. She is not yet accusing them of assault, but is chatting, even seeks to reassure him in that first message. 

On October 22, she then makes an appointment at the campus health clinic because she had what she thought was a UTI and wanted to be tested because she told the doctor that she had gone through a traumatic experience. 

According to the New York Times reporting, you could see her thinking about what happened kind of evolve over those few weeks. She at some point says that this is starting to ruin her life, and she’s sleeping and crying and she’s feeling ashamed. She’s just really grappling with what had taken place, trying to make sense of it. By November 3 is when, according to these investigative documents that were obtained by the Times, she kind of comes to this conclusion that what happened at the party at Chi Phi was assault. 

She texts one of the seven fraternity members and says, “This was not consensual. I was given more ketamine than I can remember,” and that she was uncomfortable. A few days later, November 7th, 2024, according to these documents, she goes to the ER and asks for a rape kit. And the following day is when she goes to Cornell University Police.

When she goes to the police, how does she characterize what happened to the police? What does she tell them?

What she tells the police is that she believes she was assaulted, and she tells the police that it had started out as something that was consensual. And then at the end she says, “I can say with 100 percent confidence I was raped.” She tells police she was extremely uncomfortable and that she kept taking ketamine in part because she thought she might black out and pass out. She had thought of at least two of the men as her friends. After the events of that night, she is then confronted with rumors that were spreading across campus, sort of depicting her as loose and blaming her essentially.

What happens after Jane Doe talks to the police? What do they do?

When she talks to Cornell University Police, they summarize what she said in a six-page statement that she then signs. And that is the statement that is submitted to the Tompkins County district attorney. 

And the district attorney would be the person who would bring charges or decide not to bring charges. What does he decide? 

Yes, so the district attorney decides not to bring charges in 2024 based on, he has said, the sworn statement that she signs to police. 

The DA says no charges for the seven men. Were they disciplined in any way?

We don’t know exactly how each of the men were disciplined. Cornell has said that they faced a range of disciplinary measures, including expulsions and suspensions. One of the details that had gone particularly viral about this is that the disciplinary measures included for some of the students to write essays. Cornell has not denied that, but it has specifically denied that the students only had to write essays as a disciplinary measure. The university has cited privacy laws and said it really can’t release any more specifics about how individual students were punished or not punished. 

What did Jane Doe do after first talking to the police and then learning the DA wasn’t going to press charges?

After she goes to police, we know she remains on campus and she has to continue seeing some of these men. And she also participates in the school’s Title IX investigation, which takes place over several months and concludes at some point in 2025.

I want to ask you about the DA. He is out in public defending his decision to not press charges in 2024. How is he defending himself?

The DA is a big part of the story. This is the Tompkins County District Attorney. His name is Matthew Van Houten. And he has said that in 2024, based on the written statement from Jane Doe, they did not have what they needed to press criminal charges. 

It’s important to note that we, as in the public, we’ve not actually seen a copy of Jane Doe’s sworn statement. The DA issued a press release in which he summarizes that statement. And in that summary, he describes her characterization of this as voluntary and conscious and consensual. That is at odds with some of the investigative documents that we’ve seen reported since then, including that transcript of Jane Doe’s interview with Cornell Police in which she very confidently says that she believes she was raped and even says that she was physically hit during that night.

The DA said that he did not see, before the lawsuit, the screenshot of the Snapchat message where the frat members are talking pretty crudely about the situation, and he also says he didn’t see the transcript of the interview between Jane Doe and police.

We now know the names of the seven men who were there that night. Have they said anything?

The seven men themselves have not publicly said anything, and the lawyers for three of those seven men have publicly denied the allegations. One of them says that his client went into the room, but immediately left and didn’t participate in the assault.

This is a story that is developing very quickly, and it seems like new information is coming out just about every day. What do we know about what happens next?

So there’s at least two things going on here. There is the reopened criminal investigation. 

Separately, there’s the civil lawsuit that Jane Doe filed last month, and that is not dependent in any way on how the criminal investigation goes, but that will also proceed against the university, the seven fraternity members, and the fraternity itself.

For a brief moment last week, it appeared that an ICE officer, who allegedly shot a man during the early 2026 occupation of Minneapolis and then lied about it, might actually face legal consequences for his actions.

Christian Castro, the now-suspended ICE officer in question, was confined to a Texas jail and potentially faced two sets of criminal charges. Minnesota prosecutors charged him with four felony counts of assault and one count of falsely reporting a crime, and sought his extradition from Texas, where he ordinarily lives, to Minnesota. Federal prosecutors, meanwhile, were reportedly planning to charge Castro with a criminal violation of a federal civil rights law.

Castro’s case was on track to become an encouraging example of how the American system can bring rogue law enforcement officers to account — a federal officer facing clear consequences for allegedly breaking the law in the unpopular and violent wave of ICE raids in Minnesota.

But all of that now appears to be in limbo. According to the New York Times, the federal charges, which had to be approved by officials in Washington, DC, “fell apart in the final hours for reasons that remain unclear.” Castro, meanwhile, may never return to Minnesota — and may even flee to Mexico — thanks to a federal court decision permitting Texas’s Republican Gov. Greg Abbott to effectively sit on Minnesota’s request to extradite Castro until after a state law required Castro’s release.

It’s the latest chapter in an ongoing saga where Trump administration officials, federal courts eager to shield federal law enforcement officers from justice, and now Texas state officials all work together to ensure that ICE and other law enforcement personnel involved in Trump’s violent crackdown in Minnesota face no legal consequences for their actions. 

If Castro gets off scot-free, he will owe his freedom to an unusual combination of federal and state officials who appear to have taken extraordinary measures to shield Castro from accountability. But while his case is unusually dramatic, it is hardly unique. An array of MAGA sympathizers and movement conservatives in state governments, the federal judiciary, and the Trump administration have all pushed to place ICE and similar agencies above the law.

What is the legal fight over Castro about?

Castro allegedly fired his gun through the door of Julio Sosa-Celis’s Minneapolis home in January, striking him in the leg. Although the Trump administration initially claimed that Sosa-Celis and his roommate attacked ICE officers with a broom and shovel, that allegation fell apart after prosecutors viewed video of the incident. Castro was suspended from his job at ICE without pay.

In May, a Minnesota prosecutor filed charges against Castro, and Castro was later arrested in Texas pursuant to an arrest warrant arising out of those charges.

That arrest should have guaranteed that Castro would be returned to Minnesota for trial. The Constitution provides that “a Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.” Minnesota Gov. Tim Walz formally sought Castro’s extradition on June 2.

Rather than comply with this request, however, Abbott took two actions that may prevent Castro from ever being tried for his alleged crimes. Abbott initiated an investigation, claiming, on dubious legal grounds, that he may not be able to extradite Castro because Castro does not meet the legal definition of a “fugitive.” Abbott also sent his lawyers to federal court to argue that the court could not order Texas to comply with the Constitution’s mandatory extradition provision.

Meanwhile, a deadline loomed over Minnesota’s request. Though Castro was incarcerated in a Texas jail, Texas law only permitted the jail to hold Castro for 90 days, at least without an order from Abbott saying that Castro must be extradited. During his incarceration, Castro also made several phone calls to his romantic partner in Mexico, and they discussed Castro’s desire to move to that country. 

So Minnesota quite reasonably feared that, if the 90 days were allowed to expire, Castro would flee the country.

Nevertheless, last Wednesday a Trump-appointed Judge Fernando Rodriguez Jr. backed Abbott’s play. His opinion in Walz v. Abbott rests on an extraordinarily credulous interpretation of Abbott’s treatment of Castro.

Briefly, Rodriguez’s opinion claims that it is too soon for a court to order Abbott to extradite Castro because Abbott has not yet formally “denied the request for a rendition warrant.” Instead, Rodriguez notes that Abbott asked Texas’s secretary of state to investigate whether Castro should be surrendered to Minnesota, and suggests that Minnesota must wait for that “investigation” to play out.

Oddly, Rodriguez’s opinion also includes a footnote indicating that he believes Abbott’s supposed investigation is baseless. The premise of that investigation is that Castro may not count as a “fugitive” because he moved to Texas after ICE directed him to do so. But, as Rodriguez notes, the Supreme Court defined who counts as a fugitive more than a century ago, and the Court’s definition does not exclude people who move because of a job, federal or otherwise.

So, to summarize Rodriguez’s decision, he ruled that Texas may delay complying with Minnesota’s extradition request, based on an investigation into a legal question that the Supreme Court has already resolved, and that it may delay compliance until state law requires Texas to release Castro. Castro was released on Thursday.

Thanks to this decision, it is now unclear whether Castro will ever face charges. Even if he remains in Texas, and even if Abbott eventually decides to comply with the extradition request, Texas authorities will now have to find Castro again and rearrest him. And Castro may flee to Mexico. While Minnesota can formally request Castro’s extradition from Mexico, that process could take years.

And, in case there is any doubt, there’s now strong evidence that Abbott’s “investigation” was a sham, and that Abbott was always motivated by hostility toward Minnesota’s attempt to prosecute Castro. One day after Rodriguez issued his decision, Abbott posted on X mocking Minnesota Attorney General Keith Ellison, which said that Ellison and his legal team “are such bad lawyers.”

The post also labeled Minnesota a “sanctuary state” and threatened to bus immigrants from Texas to Minnesota.

Even if Abbott had complied with the Constitution, Minnesota prosecutors faced an uphill battle in their case against Castro

Even if Castro had been delivered to Minnesota authorities without incident, or even if he is arrested in Minnesota at some point in the future, it’s far from clear whether state prosecutors may bring charges against a federal law enforcement officer who allegedly violated Minnesota’s criminal law while carrying out his official duties. And the biggest obstacle standing against such a prosecution is a fairly sensible Supreme Court decision that long predates modern political fights over immigration enforcement.

The Court’s decision in In re Neagle (1890) arose from a wild incident where a former chief justice of the state of California attempted to kill a sitting Supreme Court justice. David Terry, the former state justice, married a woman who claimed that she was entitled to a share of a US senator’s fortune. After Justice Stephen Field ruled against Terry’s wife, Terry threatened Field’s life, and so Field was assigned a deputy US Marshal named David Neagle as his bodyguard.

Some time after Field’s decision against Terry’s wife, the justice was traveling by train in California, and he was attacked by Terry. Neagle shot and killed Terry. And California attempted to charge Neagle, the federal bodyguard, with murder. 

The Supreme Court tossed out this prosecution, and that decision has long been read to limit state governments’ power to prosecute federal officers who commit a state law crime while engaged in their official duties.

That said, the Court’s more recent decision in Martin v. United States (2025) suggests that Neagle may not be a total bar to state prosecutions of ICE officers. Martin read Neagle fairly narrowly, to say that federal officials are protected from state prosecutions only when their actions “were ‘necessary and proper’ in the discharge of their federal responsibilities.”

So that suggests that, if Castro is tried for violating Minnesota law, the question of whether he is immune from prosecution is likely to turn on whether courts determine that his alleged decision to fire a shot through Sosa-Celis’s door (and, potentially, to lie about Sosa-Celis’s actions) was a “necessary and proper” way for Castro to carry out his responsibilities as an immigration enforcement officer.

It’s hard to predict, however, how the courts would rule on this question. The Martin decision is fairly new, and the rule Martin seems to apply to federal officers charged with state crimes is vague. 

Federal law also provides that Castro’s trial, should it happen, must occur in federal court — although this federal court may still hear a state-law prosecution. And that means that any decision allowing Castro’s prosecution to move forward would appeal to the US Court of Appeals for the Eighth Circuit, which is one of the most conservative appeals courts in the federal system.

Of course, if Minnesota lost in the Eighth Circuit, it could potentially bring the question of whether Castro may be charged with violating a Minnesota criminal law to the Supreme Court. But, while the Martin decision suggests that Minnesota may have a chance of prevailing before the justices, several of the Court’s other precedents indicate that this Court is unlikely to rule against a federal law enforcement officer.

The slow death of Bivens

Separately from the legal question of whether someone like Castro can be charged with a crime, there is also the question of whether the victim could sue. It used to be the case that people who are victimized by federal law enforcement officers could sue those officers directly, but the current Supreme Court has virtually shut down these suits. The Court’s treatment of this question is a window into their expansive view of immunity for federal law enforcement.

More than five decades ago, the Supreme Court established in Bivens v. Six Unknown Names Agents (1971) that federal officers who violate the Fourth Amendment’s ban on “unreasonable searches and seizures” may be sued and potentially ordered to compensate their victim.

But the Court’s current majority is extremely hostile to Bivens, and has walked right up to the edge of overruling it. In Hernández v. Mesa (2020), the Court’s Republican majority held that a Border Patrol agent who allegedly fatally shot a Mexican teenager in the face was immune from a lawsuit brought by the teenager’s family. More recently, in Egbert v. Boule (2022), the Court declared that federal law enforcement officers are immune from suit if there is “any rational reason (even one)” to justify giving them immunity.

In November, the Court will hear the Nielsen v. Watanabe that could potentially overrule what little remains of Bivens.

The Supreme Court’s Republican majority, in other words, has spent the last several years immunizing federal law enforcement officers like Castro from civil lawsuits. That doesn’t necessarily mean that it will also immunize Castro from criminal charges brought under state law, should his case somehow wind up before the justices, but it isn’t a hopeful sign for Minnesota prosecutors.

And that’s, of course, assuming that Minnesota law enforcement somehow manages to take custody of Castro. Abbott’s gamesmanship, and Rodriguez’s decision to bless that gamesmanship, may ultimately mean that Castro is never apprehended by Minnesota officials.