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Status of Federal Regulation and Legislation of Cryptocurrency

Cryptocurrency offers an alternative to traditional fiat currency and hard commodities like gold. The cryptocurrency market cap at the time of writing of this article is over $2.4 trillion dollars.[1] There are hundreds of different cryptocurrencies, from well-known ones like Bitcoin (which accounts for more than half of all cryptocurrency value) to little known ones like ViciCoin or Chia (which account for a fraction of a percent of all cryptocurrency value).[2] In 2024, approximately 7% of adults in the United States bought cryptocurrency or held it as an investment.[3] Only approximately 2% used it to buy something.[4] While there is not currently one overarching set of federal regulations for cryptocurrency, there are various federal and state laws that govern the use of cryptocurrency. This article will discuss the status of the current cryptocurrency regulations that exist at the federal level, what’s on the horizon for federal cryptocurrency legislation, and how these laws affect cryptocurrency use and markets.

Current Federal Cryptocurrency Regulation

The Securities and Exchange Commission (SEC) regulates cryptocurrency under existing securities law. Cryptocurrency businesses must comply with federal money transmission laws under the Bank Secrecy Act (Title 31 of the United States Code).

Other federal agencies that regulate parts of cryptocurrency are the Commodity Futures Trading Commission (CFTC) which oversees digital assets as commodities, the Financial Crimes Enforcement Network (FinCEN) which requires anti-money laundering compliance for virtual currency businesses, and the Internal Revenue Service (IRS) which has established comprehensive tax reporting requirements effective 2025.

In July of 2025, Congress enacted the Guiding and Establishing National Innovation for U.S. Stablecoins (GENIUS) Act, establishing a federal framework for payment stablecoins.[5] Stablecoins are pegged to a stable asset, usually the United States dollar, and are backed by reserves. Examples are Tether or USD Coin. In general, the GENIUS Act framework provides supervisory and enforcement authority over stablecoins.

Notably, stablecoins are not the common, well-known cryptocurrencies like Bitcoin. This is because permitted payment stablecoins are not treated as securities under federal securities laws. In other words, the largest piece of current federal legislation related to cryptocurrency doesn’t cover the vast majority of standard transactional cryptocurrency. Future cryptocurrency legislation aims to fill existing gaps at the federal level.

Potential Future Federal Cryptocurrency Legislation

The Digital Asset Market Clarity Act (or the CLARITY Act) passed the House of Representatives in July 2025, establishing frameworks for regulatory jurisdiction between the SEC and CFTC. It was received in the Senate in September 2025 and as of February 2026 continues to be discussed at Senate Banking Committee meetings.[6]

The bill proposes to establish “the United States as the crypto capital of the world.”[7] It seeks investor protections and tools for law enforcement, as well as protect Americans and keep fueling financial innovation in America.[8] The act aims to protect Americans by delivering transparency, oversight, and accountability. It gives a clear legal outline for the crypto industry and who regulates what between the SEC and CFTC. It would enable innovation while ensuring compliance. Finally, it boasts appropriate sanction framework and gives new tools to law enforcement to deal with illicit finance activity.

This proposed legislation as currently written was not favored by the industry. Cryptocurrency companies argue that the legislation continues to favor traditional banking and finance institutions.[9] The largest point of contention is the restrictions on stablecoin rewards—should stablecoins be able to pay interest-like rewards. Banks argue that if this were allowed, it would decrease the amount of deposits held in the traditional banking system. This of course is exactly what the cryptocurrency industry wants. In fact, it’s one of the goals of cryptocurrency, to move away from traditional banking.

How would this work? If a user held stablecoin and was able to receive interest from that holding, the argument is that the holding would look more like a savings account or money market fund. Banks depend on deposits to function and to make a profit. Deposits also increase the ability to lend and lack of deposits could potentially stress the banking industry. Because, as traditional banks argue, the stablecoins would function as savings accounts or similar to them, they should have to be subject to the same regulation that banks face.

The counterargument from the cryptocurrency industry is that banning these interest rewards really only favors the banks, not the consumer. Plus, if the United States bans stablecoin rewards, users will just move to offshore platforms that offer them anyway. This would decrease the amount of regulatory control that the government has over funds and would overall counter thegoals of benefitting and protecting Americans.

Effect of Federal Cryptocurrency Regulation and Legislation on Use and Markets

As it stands, the GENIUS Act is what exists at the federal level regulating cryptocurrency, but again, it regulates specifically stablecoins. Stablecoins act as regulated digital dollars, a way to store value in an asset that is tied directly to treasury bills or the United States dollar. It defines who can issue stablecoins and in general makes them safer but less flexible and innovative than a cryptocurrency should aim to be.

The CLARITY Act would have the effect of regulating the entire cryptocurrency ecosystem. It would have three main effects. First, it would define when a token is a security or a commodity. A security is an investment contract (like stocks, bonds) regulated by the SEC. According to the Supreme Court’s “Howey Test” a transaction is a security if it is (1) an investment of money; (2) in a common enterprise; (3) with an expectation of profit; and (4) based on the efforts of others.[10] A commodity is something like gold, oil, or wheat, and is regulated by the CFTC. Depending on the classification, different regulations would apply for registration, disclosures, and oversight obligations. In general, securities are much more heavily regulated. Second, it would create a registration path for crypto exchanges, such as Coinbase, giving them added legitimacy as a registered entity recognized by the federal government. Third, it would impact decentralized finance efforts by making overall innovation slower because of red tape hurdles.

Largely, cryptocurrency use remains largely untouched at the basic user level. Cryptocurrency providers and exchanges are the ones that are regulated, and user consumers are left to operate as they do in other contexts. When legislation favors or disfavors something in any context, a related stock or market increases or decreases. The same is true of cryptocurrency. The market remains volatile and if the CLARITY Act passes, the markets will adjust according to whatever the legislation ends up including.

Cryptocurrency is, in part, about rebelling against who controls a store of value, who controls currency. It’s about providing a decentralized financial system that can be independently verified. Future federal cryptocurrency regulation will directly effect cryptocurrency and if this industry stays alive.

Conclusion

Cryptocurrency is hefty: a $2.4 trillion dollar market can’t be pushed aside. Current federal regulation, the GENIUS Act, focuses on regulating stablecoins. That is an indicator that legislation regulating the entire cryptocurrency ecosystem will eventually be passed. Future federal legislation, the CLARITY Act, aims to do that. The contents of that law will have effects that determine the ultimate future of cryptocurrency.

[1] Cryptocurrency Prices Today By Market Cap, Forbes, https://www.forbes.com/digital-assets/crypto-prices/?page=1.

[2] Id.

[3] Federal Reserve, Economic Well-Being of U.S. Households in 2024, Federal Reserve Research & Analysis (May 2025), https://www.federalreserve.gov/publications/files/2024-report-economic-well-being-us-households-202505.pdf.

[4] Id.

[5] Public Law 119–27 PL 119–27 [S 1582] July 18, 2025 GUIDING AND ESTABLISHING NATIONAL INNOVATION FOR U.S. STABLECOINS ACT

[6] 119th CONGRESS, 1st Session United States Library of Congress HR 3633 Reported in House.

[7] The Facts: The CLARITY Act, United States Senate Committee on Banking, Housing, and Urban Affairs (Jan. 13, 2026), https://www.banking.senate.gov/newsroom/majority/the-facts-the-clarity-act.

[8] Id.

[9] Micah Zimmerman, Senate Banking Committee Postpones CLARITY Act Markup After Crypto Industry Backlash, Bitcoin Magazine (Jan. 15, 2026), https://bitcoinmagazine.com/news/senate-banking-committee-clarity-act.

[10] SEC v. W.J. Howey Co., 328 U.S. 293 (1946).

March 26, 2026 by Evan Esslinger

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Executive Order Suspending FCPA Enforcement: An Unconstitutional Overreach

Congress passed the Foreign Corrupt Practices Act (FCPA) in 1977.[1] The FCPA governed domestic business conduct with foreign government officials in foreign markets.[2] Generally, the FCPA prohibits bribes to foreign officials to obtain or retain business.[3] The statute applies to publicly traded companies and their agents.[4] To do so, the FCPA requires issuers to maintain accurate books and records to disclose potential payments to foreign officials.[5] In 2024 alone, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) obtained over $1.28 billion in total fines and penalties relating to the FCPA.[6]

On February 10, 2025, President Donald Trump issued an executive order suspending enforcement of the FCPA for 180 days.[7] The Executive Order, Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security, exceeds presidential authority. While the executive branch enjoys broad discretion in how it enforces federal law, the wholesale suspension of enforcement of the FCPA for 180 days exceeds the President’s Article II authority. The Constitution’s Take Care Clause says the president “shall take Care that the Laws be faithfully executed.”[8] By ordering the Department of Justice to halt all new FCPA cases and reorient ongoing ones, the president has effectively nullified a statute enacted by Congress, and therefore, has exceeded his presidential authority.

Youngstown Sheet provides that when the president acts contrary to Congress’s expressed will, his power is “at its lowest ebb.”[9] Here, Congress explicitly enacted the FCPA to combat foreign bribery by American companies.[10] Legislative power rests with Congress, not the president. As the Constitution states, “All legislative Powers herein granted shall be vested in a Congress.”[11] The statute establishes no presidential authority to suspend enforcement.[12] By pausing all new investigations absent of approval from the Attorney General, the executive order directly contravenes Congress’s design and therefore falls squarely into Youngstown’s category three.[13] In other words, President Trump’s executive order contradicts the express and implied will of Congress.

The executive order cannot simply cite prosecutorial discretion, foreign affairs powers, and national security to mask its unconstitutionality. Prosecutorial discretion cannot be read so broadly as to permit the categorical nullification of an entire class of statutory enforcement. Nor can foreign affairs powers displace clear congressional legislation. The executive order ensures that the FCPA is not enforced in a manner that “harms American economic competitiveness and, therefore, national security.”[14] The president cannot broadly, without foundation, invoke national security as an excuse to not “Care that the Laws be faithfully executed.”[15] Congress had already spoken on the issue when Congress passed the FCPA in 1977.[16] The President may not contradict Congress by invoking vague “national security” rationales. This is not permitted under Youngstown’s category three.[17] If “national security” were enough, any president could decline to enforce laws passed by Congress that he or she disagrees with simply by asserting that strict enforcement undermines security.

The Deputy Attorney General issued new enforcement guidelines in its June 2025 memorandum, concluding the 180-day suspension.[18] The memorandum redirected prosecutors to focus on cartel-linked corruption, strategic infrastructure, and “serious misconduct” while avoiding “routine business practices.”[19] These guidelines fundamentally reshape how the FCPA will be enforced. They even require that all new investigations be approved by the Assistant Attorney General or higher.[20] This narrowed the statute to fit the President’s policy views. This is not faithfully executing the law. It is presidential rewriting of the law.

The Department of Justice admittedly has broad discretion in its enforcement based on its limited resources. The government cannot prosecute every violation of the FCPA. Prosecutorial discretion is arguably murky. At a minimum, an executive order categorically suspending a congressionally passed statute from any enforcement for 180-days is unconstitutional. The harder question is whether the new enforcement guidelines simply constitute prosecutorial discretion based on the Department of Justice’s limited resources. The correct analysis is whether the new guidelines set out by the Justice Department’s enforcement of the FCPA are fundamentally different from the FCPA’s text and original intent passed by Congress. If these two things are so fundamentally different, then this is no longer prosecutorial discretion, but executive rewriting of the law that infringes Congress’s legislative authority. In other words, if the DOJ changes the enforcement of FCPA so fundamentally, then prosecutorial discretion is no longer part of the equation. It is no longer discretionary if a law is, in effect, rewritten. The new FCPA enforcement guidelines focus on cartel activity, which is fundamentally different than the FCPA’s original purpose, to have a statutory scheme to deal with companies bribing foreign officials.[21]

Overall, the executive order exceeds presidential authority. In other words, the president is exercising legislative authority instead of executing the law. By halting enforcement of the FCPA, President Trump exceeded his Article II authority and violated the Take Care Clause. The DOJ memorandum implementing the order confirms this overreach by substituting presidential policy preferences for congressional command. Legislative power rests with Congress, not the president. Therefore, Executive Order 14209 is unconstitutional.

[1] Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1–78dd-3 (2024).

[2] Mike Koehler, The Story of the Foreign Corrupt Practices Act, 73 Ohio St. L. J. 929, 929 (2012).

[3] Foreign Corrupt Practices Act (FCPA), U.S. SEC (Sep. 13, 2023), https://www.sec.gov/enforcement/foreign-corrupt-practices-act [https://perma.cc/5DFR-QPG2].

[4] Id.

[5] Id.

[6] Cuneyt A. Akay, FCPA Year in Review 2024, GreenbergTraurig (Jan. 29, 2025), https://www.gtlaw.com/en/insights/2025/1/fcpa-year-in-review-2024 [https://perma.cc/3E5B-D6GG]; SEC Enforcement Actions: FCPA Cases, U.S. SEC (July 21, 2025), https://www.sec.gov/about/divisions-offices/division-enforcement/enforcement-topics-initiatives/sec-enforcement-actions-fcpa-cases [https://perma.cc/7EXP-CTCY].

[7] Exec. Order No. 14209, 90 Fed. Reg. 9587 (Feb. 10, 2025).

[8] U.S. Const. art. II, § 3.

[9] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).

[10] See generally Koehler, supra note 2.

[11] U.S. Const. art. I, § 1.

[12] 15 U.S.C. §§ 78dd-1–78dd-3.

[13] Youngstown Sheet & Tube Co., 343 U.S. at 637.

[14] Exec. Order No. 14209, 90 Fed. Reg. at § 1.

[15] U.S. Const. art. II, § 3.

[16] 15 U.S.C. §§ 78dd-1–78dd-3.

[17] Youngstown Sheet & Tube Co., 343 U.S. at 637.

[18] Memorandum from Deputy Att‘y Gen. Todd Blanche to Head of Crim. Dep‘t (June 9, 2025), https://www.justice.gov/dag/media/1403031/dl?inline [https://perma.cc/ZF4F-JC5B].

[19] Id.

[20] Id.

[21] See generally Koehler, supra note 2.

February 12, 2026 by Klara Beinhorn

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An Overlooked Crisis: Why Minnesota Must Reform Prison Dental Care

Dental care is a fundamental component of overall health, yet it remains one of the most overlooked areas in healthcare systems worldwide.[1] Within the Minnesota prison system, dental care can only be accurately described as a public health crisis.[2] While medical and mental healthcare receive some degree of attention in public policy discussions regarding inmate care, oral health is often dismissed as a secondary concern.[3] This reality exists despite overwhelming evidence that poor dental care is directly linked to serious health complications, including cardiovascular disease, diabetes, pneumonia, and other systemic conditions.[4] The mouth is not separate from the body; it is a crucial entry point that can indicate, and sometimes magnify, underlying medical issues.

The importance of dental care compared to its access among the general public is even more prominent in correctional facilities, where incarcerated individuals often enter with preexisting dental conditions due to a history of inadequate oral care. Studies have shown that the oral health of incoming inmates tends to follow the trends of people in lower socioeconomic groups of the general population, which, in a word, is bad.^[5] These disparities correspond directly to the lack of preventative services, such as routine dental exams, which begin at adolescence, Between 2016 to 2021, there has been a 10% decrease in the percentage of low-income children and adolescents (ages 1-17) who had a past-year dental visit for preventative oral care.^[6] This number has continued to decline steadily since, and signals a multitude of problems that may arise from this statistic alone.^[7]

This trend is particularly concerning given the well-established “poverty-to-prison pipeline.” It is no secret that mass incarceration disproportionately affects marginalized communities. Approximately 80% of incarcerated individuals in the United States come from low-income communities, and 67% are minorities.^[8] The systemic barriers that prevent people of these backgrounds from accessing dental care outside of prison do not magically disappear once they are behind bars. In fact, these barriers are aggressively reinforced by policies that enable the deprivation of incarcerated individuals of even the most basic healthcare needs, and are wholly ignored by those who put these systems into place.

In the State of Minnesota, the Department of Corrections contracts out for general physical health, mental health, eye health, etcetera, but does not have a contract for dental care.^[9] This absence is not a mere oversight; it reflects a deeper, systemic failure to prioritize oral health as an essential component of medical care. Still, there are valid arguments as to how privatized healthcare contracts in prisons often lead to poor oversight and diminished quality of care^[10], but at the very least, other aspects of prison healthcare have a basic framework whereas dental care is left without even the semblance of a structured system.

The consequences of this neglect are grim. Incarcerated individuals often wait months or even years for dental treatment, enduring severe pain and the progression of preventable conditions. In many cases, the only solution offered is tooth extractions rather than restorative treatments such as fillings, crowns, or root canals.^[11] This reflects a broader pattern in prison healthcare: quick, cost-cutting measures take precedence over comprehensive, patient-centered care. The result is a cycle of suffering in which incarcerated individuals are forced to live with chronic pain and deteriorating health.

The overall failure to provide adequate dental care in Minnesota’s prisons constitutes a commonly overlooked infringement on the fulfillment of inmates’ basic human needs that is in desperate need of reform, however that may look. This is not to say that the state of Minnesota prison dental care is a blatant Constitutional violation, nor is it to say that simple policy reform is going to get the job done. No, the point is that despite Eighth Amendment protections and empty promises of policy redress, what is happening in Minnesota prisons is wrong and that truth needs to be faced truth head-on. Once that is done, we can finally start to take true steps on the path towards solving this atrocity by treating human beings as such.

Among the many obstacles preventing incarcerated individuals from receiving proper healthcare, financial barriers stand out as particularly egregious. In Minnesota prisons, incarcerated individuals are required to pay a $5 copay for each medical visit, including requests to see a nurse or doctor.^[12] While this amount may seem small outside prison, it poses a significant burden for those earning as little as $0.25 per hour^[13]. This system discourages many from seeking medical care, forcing them to endure illnesses or injuries rather than depleting their already limited financial resources. Some exceptions exist, such as for chronic care visits or emergencies, but for many incarcerated individuals, the copay system creates a major barrier to accessing necessary healthcare and only reinforces the class system endured by free citizens.

A powerful research report put forth in 2018 by the Voices for Racial Justice gathered an abundance of data on healthcare in Minnesota prisons, which includes barriers to adequate health, health impacts of incarceration, and an overall reflection of voices in the community.^[14] This report explained how the DOC uses the system of copayments, where “[o]ne sick charge of $5.00 can cost a person who is incarcerated 20 hours of work if they are being paid 0.25 per hour.”^[15] An anonymous inmate participating in the research report also brought forward the point that when an incarcerated individual has a health complication, it often requires being seen more than once:

How are you gonna afford a five, or 10, or $15 copay. That’s ridiculous. Especially, what if your thing is not resolved, and you need to keep going back and keep paying those copays, so it’s absolutely not affordable.^[16]

This financial strain leads many incarcerated individuals to forgo medical and dental visits entirely, allowing minor health concerns to escalate into severe, untreated conditions.^[17]

Despite repeated calls for reform, Minnesota’s Office of the Legislative Auditor (“OLA”), the entity responsible for reporting audits, evaluations, and investigations of state programs to the Minnesota Legislature, has done little to address these concerns. The OLA’s most recent comprehensive report on Minnesota prison healthcare is over ten years old, from 2014^[18], and rather than calling for systemic change, the OLA merely updated its report to state that the DOC should ensure that “copayment policies are well understood by facility staff and consistently applied.”^[19] This unclear response completely ignored the concerns brought forward by the people who are being affected by the copay policy daily, the inmates.

While medical care in Minnesota prisons is already inadequate, the situation for dental care is even more alarming. The DOC’s only formal policy regarding dental care is limited to a single vague statement, “A Minnesota-licensed dentist provides and/or directs responsive, clinically appropriate emergency, urgent, and routine dental care to offenders and residents.”^[20] Unfortunately, Minnesota caselaw and first-hand accounts from inmates make it known that the DOC is turning its cheek to this statement, leading to delays and outright denials of treatment.^[21] Preventative services, such as routine cleanings and checkups, are scarce, and many inmates report being left to endure prolonged pain before receiving any form on intervention.^[22]

The DOC has a separate policy stating that a medical, dental, mental health, and sexual assault risk screening must occur within 24 hours of a person’s arrival at a correctional facility.^[23] And while it has been generally accepted that these initial screenings do timely occur, the issue is in the follow-up, where one formerly incarcerated person reported that the DOC “definitely need[s] to get rid of that two year wait for dental check-ups. That’s outrageous. Oral health impacts all of the other health, so you got cats running around with poor oral hygiene.”^[24] In practice, access to follow-up dental care in Minnesota’s prisons is an uphill battle. Incarcerated individuals must submit a formal request to see a dentist, a process that can take weeks or months before an appointment is granted.^[25] And even when a visit is approved, the range of available treatments is often restricted to the most basic procedures.^[26] Fillings, root canals, and other restorative treatments are often denied in favor of extractions, reinforcing a system where pain management is prioritized over long-term oral health.^[27]

Ultimately, improving prison dental care in Minnesota requires a creative approach that combines legislative action, advocacy efforts, and systemic reforms. The ongoing efforts of legal and public health organizations, combined with policy initiatives such as increased funding and community-based care, offer a path forward toward a more humane and effective system. By prioritizing oral health as an essential component of overall healthcare, Minnesota can take meaningful steps toward ensuring that incarcerated individuals receive the care they need, promoting both justice and public health.

[1] Priyanka Gudsoorkar, BDS, M.B.A., M.P.H & Sujay A. J. Mehta, D.M.D., MPH, Revitalizing the Oral Health Agenda: A Call for Integrated Health Policy and Practice, Academy Health (July 16, 2024), https://academyhealth.org/blog/2024-07/revitalizing-oral-health-agenda-call-integrated-health-policy-and-practice-0.

[2] See discussion supra Part II.

[3] See discussions supra Parts III.B, IV.A.

[4] See Robert H. Shmerling, MD, Gum disease and the connection to heart disease, Harvard Health Publishing (Oct. 8, 2024), https://www.health.harvard.edu/diseases-and-conditions/gum-disease-and-the-connection-to-heart-disease; see also Mayo Clinic Staff, Oral health: A window to your overall health, Mayo Clinic (Mar. 14, 2024), https://www.mayoclinic.org/healthy-lifestyle/adult-health/in-depth/dental/art-20047475.

[5] Health Disparities in Oral Health, Center for Disease Control (May 15, 2024), https://www.cdc.gov/oral-health/health-equity/index.html.

[6] Id.

[7] Preventative Dental Visit – Children in United States, America’s Health Rankings (2022–2023), https://www.americashealthrankings.org/explore/measures/prev_dent_care_overall.

[8] Tihanne Mar-Shall, The Poverty to Prison Pipeline, L. J. for Soc. Just., Mar. 29, 2021, https://lawjournalforsocialjustice.com/2021/03/29/the-poverty-to-prison-pipeline/.

[9] See MN Department of Corrections, Fact Sheet: Medical and Nursing Services, www.MN.Gov (Dec., 2019), https://mn.gov/doc/assets/Medical%20and%20Nursing%20Services_tcm1089-309010.pdf.

[10] See Mar-Shall, supra note 8.

[11] Keith Crow, Why doesn’t Rush City prison have a dentist?, Spokesman Reporter (Apr. 17, 2024), https://spokesman-recorder.com/2024/04/17/prisoner-dental-care-mcf-rush-city/.

[12] Minn. Stat. § 243.212.

[13] Filiberto Nolasco Gomez, An Update on Prison Labor in Minnesota, Workday Magazine (Jan. 5, 2022), https://workdaymagazine.org/an-update-on-prison-labor-in-minnesota/.

[14] Voices for Racial Justice, Unfit for Human Consumption: Health and Healthcare in Minnesota Prisons, Minnesota Legislative Reference Library (May 2018), https://www.lrl.mn.gov/docs/2019/other/190451.pdf.

[15] Id. at 40.

[16] Id.

[17] Id.

[18]Office of the Legislative Auditor, supra note 12.

[19] Voices for Racial Justice, supra note 20, at 41.

[20] Minnesota Department of Corrections, Dental Services, § 500.055 (2018).

[21] Voices for Racial Justice, supra note 20, at 43.

[22] Voices for Racial Justice, supra note 20, at 43.

[23] Minnesota Department of Corrections, Incarcerated Person Intake Screening and Processing, § 202.040 (2024).

[24] Voices for Racial Justice, supra note 20, at 43.

[25] Voices for Racial Justice, supra note 20, at 43.

[26] See Keith Crow, supra note 11.

[27] See Keith Crow, supra note 11.

November 7, 2025 by Elayna Chambers

Uncategorized

THE DEATH PENALTY AND CATHOLIC SOCIAL TEACHING: A CONTEMPORARY ANALYSIS

The death penalty remains one of the most contested moral and legal issues in American society. Catholic Social Teaching (CST), rooted in the sanctity of human life, justice, and the common good, has evolved significantly on this Historically, the Church supported capital punishment as consistent with natural law and Scripture.[1] However, in 2018, Pope Francis declared the death penalty “inadmissible,” emphasizing every human’s inviolable dignity.[2] This development reflects legitimate doctrinal progression, not contradiction. Examining capital punishment through CST principles, including human dignity, restorative justice, the role of the state, and evolving papal teaching, demonstrates that abolition best serves justice and the common good.

The death penalty, which is the state-sanctioned execution for capital offenses, remains an evolving legal and moral debate given its irreversible nature.[3] The U.S. Supreme Court has long upheld capital punishment as constitutionally permissible, though subject to evolving standards of decency.[4] In Furman v. Georgia, 408 U.S. 238 (1972), the death penalty was temporarily halted due to its arbitrary and discriminatory application.[5] It was reinstated in Gregg v. Georgia, 428 U.S. 153 (1976), under stricter procedures.[6] Subsequent rulings barred execution for juveniles and individuals with intellectual disabilities.[7]Currently, there are 27 states in the United States that authorize capital punishment for crimes such as murder, treason, or assassinating federal officials.[8]

For centuries, the Catholic Church upheld the state’s right to impose the death penalty as an act of retributive justice, grounded in Scripture, tradition, and natural law. In recent decades, however, Church leaders have increasingly narrowed the legitimate application of the death penalty. The Church’s early stance, rooted in passages like Genesis 9:6 and Romans 13:4, accepted the state’s authority to punish with death.[9] Genesis teaches that “whoever sheds the blood of man, by man shall his blood be shed,” while Romans depicts the state as God’s[10] Though often cited to justify capital punishment, alternative interpretations suggest Genesis instead implies that God alone holds ultimate authority to judge, challenging the traditional interpretation[11]

Early Church figures held varying views on capital punishment. St. Clement of Alexandria justified execution for those deemed “incurable,” while St. Augustine acknowledged the state’s authority but urged mercy.[12] This tension set the stage for modern reform. Pope St. John Paul, who in Evangelium Vitae (1995) urged that executions be “rare, if not practically nonexistent,” given modern means to protect society.[13] Pope Benedict XVI advanced this focus on human dignity, supporting abolition efforts.[14] This development culminated under Pope Francis’s 2018 Catechism revision, which declared that the death penalty is “inadmissible” as an affront to human dignity.[15]

Central to CST is the principle that every human is created in God’s image with inherent dignity that cannot be forfeited, even through sin or crime.[16] Pope John Paul II affirmed that “not even a murderer loses his personal dignity,” a view echoed in the 2018 revised Catechism, which teaches that “the dignity of the person is not lost even after the commission of very serious crimes.”[17] Pope Francis reiterated in Fratelli Tutti that denying dignity to criminals denies it to everyone.[18] These teachings undermine moral justification for executions, which permanently eliminates the chance for redemption.

While the state has a duty to uphold the common good, modern penal systems can protect society without taking life. The Catechism continues to acknowledge that “preserving public order and the safety of persons” is a legitimate function of punishment.[19] While the state has a duty to protect the common good, this may no longer include the death penalty as a proportionate punishment.

A related CST principle, the preferential option for the poor, underscores how the death penalty disproportionately affects marginalized communities.[20] Avery Cardinal Dulles, an influential American Catholic theologian, identified several concerns regarding capital punishment, citing jury bias and inadequate legal defense for poor and uneducated defendants.[21] The U.S. bishops have also condemned capital punishment as both a life and racial justice issue, calling for its abolition in solidarity with the vulnerable[22]

The Catholic Church’s position on capital punishment has evolved, reflecting continuity in moral principles while responding to contemporary realities. Traditionally, however, the Church affirmed the state’s right to impose capital punishment as a means of retributive justice, consistent with classical natural law theory.[23] A clear contradiction in the Catechism gives rise to scholarly arguments that the church has not, and cannot, change its traditional teaching, as it explicitly references the fifth commandment, which forbids the intentional killing.[24]

Catholic scholars, Edward Feser and Joseph Bessette, maintain that Genesis 9:6 supports the state’s authority to impose death for grave crimes.[25] Recent magisterial developments, however, have shifted to prioritize the sanctity and dignity of every human life, calling for the abolition of the death penalty in modern society. Sister Renée Mirkes similarly argues that the Church’s essential teaching remains intact while its application is shaped by cultural and historical realities.[26] Pastors thus have a duty to exercise prudence, considering modern injustices such as racial bias, inadequate legal counsel, and wrongful convictions.

This development presents a challenge for Catholic legal professionals, as they are obliged not only by oath and professional commitment, but they are also to adhere to their church’s teaching on moral issues.[27] While the U.S. Constitution continues to permit the death penalty, many Catholic judges, including the late Justice Antonin Scalia, have struggled with reconciling personal belief and professional duty.[28] Scalia questioned how a Catholic judge might impose the death penalty despite moral opposition: “How, as a Catholic judge, can he participate in the process of imposing the death penalty when the Church says it’s immoral to do so?”[29] The Church ultimately urges the faithful not merely to tolerate current legal frameworks but to actively work for change.

The Church’s rejection of capital punishment is not a break from tradition but a fulfillment of it. Grounded in human dignity, CST recognizes that justice and mercy cannot coexist with killing as punishment. The Church’s evolution mirrors society’s moral progress toward safeguarding life and promoting rehabilitation. For Catholic legal professionals and citizens alike, the moral imperative is clear: uphold the sanctity of life, advocate for justice that heals, and build a society where redemption remains possible for all.

[1] University of St. Thomas – Minnesota, Catholic Social Teaching – Toward Justice and Healing (Blog), https://blogs.stthomas.edu/toward-justice-and-healing/category/catholic-social-teaching/, (last visited Oct. 23, 2025).

[2] Catechism of the Catholic Church ¶ 2266-2267, VATICAN (1993),

https://www.vatican.va/content/catechism/en/part_three/section_two/chapter_two/article_

5/i_respect_for_human_life.html.

[3] Death Penalty, Legal Info. Inst., https://www.law.cornell.edu/wex/death_penalty (last visited Apr. 12, 2025).

[4] Id.

[5] Id.

[6] Id.

[7] Legal Info. Inst., supra note 1, (citing Roper v. Simmons, 543 U.S. 551 (2005) (The Supreme Court banned the death penalty for juvenile offenders); Atkins v. Virginia, 536 U.S. 304 (2002) (The Supreme Court banned the death penalty for intellectually disabled criminals); Ring v. Arizona, 536 U.S. 584 (2002) (The Supreme Court required a jury, not merely a judge alone, to find an aggravating circumstance necessary to impose the death penalty)).

[8] Death Row in the United States, The Crim. Def. Team (Aug. 29, 2024), https://www.criminaldefenseteam.com/death-row-in-the-united-states/.

[9] Nathan Mastnjak, The Death Penalty and the Consequences of the Literal Meaning of Genesis 9:6, University of Notre Dame (Sept. 12, 2023).

[10] Genesis 1:27 (ESV); Romans 13:4-7 (ESV).

[11] Mastnjak, supra note 9.

[12] The Death Penalty and the Church’s Position, Centesimus Annus Pro Pontifice, https://capp-usa.org/the-death-penalty/ (last visited Apr. 13, 2025) (citing Augustine, Letter 134, para. 4; Stromata 1:27).

[13] Centesimus Annus Pro Pontifice, supra note 4, citing St. John Paul II, Evangelium Vitae, no. 56.

[14] Centesimus Annus Pro Pontifice, supra note 4.

[15] Congregation for the Doctrine of the Faith, Letter to the Bishops Regarding the New Revision of Number 2267 of the Catechism of the Catholic Church on the Death Penalty, Vatican (Aug. 1, 2018), https://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20180801_catechismo-penadimorte_en.html.

[16] Genesis, supra note 10.

[17] St. John Paul II, Evangelium Vitae ¶ 56, Vatican (Mar. 25, 1995), https://www.vatican.va/content/john-paul-ii/en/encyclicals/documents/hf_jp-ii_enc_25031995_evangelium-vitae.html; Catechism of the Catholic Church ¶ 2267, Vatican (1993), https://www.vatican.va/content/catechism/en/part_three/section_two/chapter_two/article_5/i_respect_for_human_life.html.

[18] Pope Francis, Fratelli Tutti ¶ 269, Vatican (Oct. 3, 2020), https://www.vaticannews.va/en/podcast/fratelli-tutti/2022/09/fratelli-tutti-audiobook-english-chapter-seven-part-three.html.

[19] Catechism of the Catholic Church ¶ 2266, Vatican (1993), https://www.vatican.va/content/catechism/en/part_three/section_two/chapter_two/article_5/i_respect_for_human_life.html.

[20] Pope Francis, Evangelii Gaudium ¶ 198, Vatican (2013), https://www.vatican.va/content/francesco/en/apost_exhortations/documents/papa-francesco_esortazione-ap_20131124_evangelii-gaudium.html#The_special_place_of_the_poor_in_God%E2%80%99s_people.

[21] Renee Mirkes, The Catholic Response, Saint Paul VI Institute, 60 https://saintpaulvi.com/PDF/SrReneeArticles/DeathPenalty.pdf (last visited Apr. 1, 2025).

[22] Brian Bransfield, Open Wide Our Hearts: The Enduring Call to Love, United States Conference of Catholic Bishops (Oct. 29, 2024), https://www.usccb.org/resources/open-wide-our-hearts_0.pdf.

[23] Gerald Korson, The Catholic Case for Capital Punishment, Catholic Answers (May 1, 2017), https://www.catholic.com/magazine/print-edition/the-catholic-case-for-capital-punishment.

[24] Vatican, supra note 28 at ¶ 2269; Catholic Answers, supra note 35.

[25] Catholic Answers, supra note 35, (citing Joseph Bessette & Edward Feser, By Man Shall His Blood Be Shed: A Catholic Defense of the Death Penalty, Ignatius Press (2017)).

[26] VI Institute, supra note 33, at 56.

[27] Amy C. Barrett & John H. Garvey, Catholic Judges in Capital Cases, 81 Marq. L. Rev. 303 (1997-1998), https://scholarship.law.nd.edu/law_faculty_scholarship/527.

[28] VI Institute, supra note 33, at 57.

[29] VI Institute, supra note 33, at 57.

November 7, 2025 by Jackie Moen

Uncategorized

DEI IN THE AGE OF TRUMP

At the start of his second term as president, Donald Trump released an attack on DEI policies within the federal government.[1] Universities, law firms, and organizations alike scrambled to preserve their values without jeopardizing their public image or federal funding. Is it possible that diversity, equity, and inclusion (DEI) initiatives – encouraged by the Biden administration – are illegal? This is what the Trump administration claims in his executive orders.[2] The Trump administration relies upon Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), as grounds for ending DEI.[3] Recent rulings on Trump’s executive actions, however, call into question the legitimacy of this claim. Comparing recent decisions on recent Federal actions to the holding in SFFA suggests that DEI is not illegal.

Federal Education Funding and DEI

Executive Order 15141, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” impacted Federal funding made available to several schools, including the University of St. Thomas.[4] As a result, three membership organizations, of which the University of St. Thomas is a member of, sought a preliminary injunction against the Secretary of Education.[5] The plaintiffs argued that the cancellation of the federal funding violated the Due Process Clause and the Administrative Procedures Act (APA).[6] Their Due Process claim failed because the plaintiffs could not show that the termination of the funding was directly tied to Executive Order 15141.[7] Still, the court granted a preliminary injunction because changed “agency priorities” did not justify rescinding the grants without proper procedure.[8]

Federal funding for St. Thomas’s education programs was restored due to the procedural flaws of the grant’s revocation.[9] Although the case was not decided on Due Process grounds, it is important to note that the new priorities of the Department of Education contradict previous grant application requirements. President of the University of St. Thomas, Rob Vischer, explained that the grant applications required showing how the programs would contribute to diversity in the teaching profession.[10] In their 2022 and 2023 grant application notices, the Department of Education specifically listed an increase in educator diversity as priorities for all three of the disputed grants.[11] Although the Due Process claim failed, emphasizing workforce diversity was not illegal in the past. In fact, the previous administration encouraged it.

Differentiating Affirmative Action from DEI initiatives

In SFFA, the Supreme Court ruled that affirmative action in school admissions was unconstitutional. In the opinion, Chief Justice Roberts differentiates between the unconstitutional affirmative action and other permitted methods for considering race.[13] He explained, “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”[14] This description accurately reflects DEI initiatives. DEI initiatives, encouraged by the Biden administration at the time of the opinion, are not the same as affirmative action. The Court specifically noted how Harvard’s admissions program aimed to maintain diversity by having racial preferences in the admissions process.[15] Affirmative action, however, is not the same as stating diversity as a priority in grant applications. Instead, DEI initiatives are goals that do not explicitly discriminate against applicants in any manner like the processes described in SFFA.

Ultimately, the grants for the University of St. Thomas were restored on procedural grounds.[16] Still, other cases challenging Trump’s attacks on DEI have succeeded on constitutional merits. For example, Perkins Coie LLP succeeded in challenging Trump’s attack on the law firm for its DEI policies on the basis of the First Amendment[17] Harvard also succeeded in maintaining Federal funding after the Trump administration threated to take away funds due to the institution’s promotion of DEI. The court determined that the Trump administration’s actions were retaliation for protected speech.[19]

Diversity, Equity, and Inclusion is not Affirmative Action

Trump’s attacks on DEI have not yet been successful. Beyond violating the Administrative Procedures Act, attacks on DEI will likely face several other barriers. Because DEI is an abstract statement of values, rather than a definitive act, broad stroke claims that DEI is “illegal” affirmative action will likely not succeed. Instead, DEI promotion will probably be considered constitutionally protected speech. That does not stop the Trump administration from shaping grant funding applications and altering institutional values. Until then, DEI will remain safe from retaliation and funding already granted remains secure. Regardless of the social, racial, or economic impacts of DEI initiatives, DEI policies are not an “illegal” form of affirmative action.

[1] Exec. Order No. 14151, 90 Fed. Reg. 8339 (January 20, 2025); Exec. Order No. 14173, 90 Fed. Reg. 8633 (January 21, 2025); Exec. Order No. 14230, 90 Fed. Reg. 11781 (March 6, 2025).

[2] Id.

[3] Exec. Order No. 14173, 90 Fed. Reg. 8633 (January 21, 2025).

[4] Gordon Severson, Dept. of Education cancels grant program, affecting 185 students at St. Thomas pursuing careers in special ed, Kare 11, https://www.kare11.com/article/news/local/dept-education-cancels-grant-program-st-thomas-special-ed/89-4e11c81d-1800-4d85-9b58-94f5b96206f3 (February 12, 2025, 9:32 PM).

[5] Am. Ass’n of Colleges for Teacher Educ. v. McMahon, 770 F. Supp. 3d 822 (D. Md. 2025).

[6] Id. at 840.

[7] Id.

[8] Id. at 855.

[9] Erin Alder, St. Thomas grants reinstated after Trump administration’s DEI cuts, Minn. Star Tribune (April 2, 2025, 2:15PM) https://www.startribune.com/st-thomas-grants-reinstated-after-trump-administrations-dei-cuts/601316701.

[10] Severson, supra note 4.

[11] Applications for New Awards; Teacher Quality Partnership Grant Program, 87 Fed. Reg. 10906-01 (February 25, 2022); Applications for New Awards; Supporting Effective Educator Development Program, 87 Fed. Reg. 19487-01 (April 4, 2022); Applications for New Awards; Teacher and School Leader Incentive Program, 88 Fed. Reg. 33592-02 (May 24, 2023).

[12] Students for Fair Admissions, Inc. v. President and Fellows of Harvard Coll., 600 U.S. 181, 230 (2023).

[13] Id. at 230-1.

[14] Id. at 230.

[15] Id. at 222.

[16] Supra note 5, at 855.

[17] Perkins Coie LLP v. U.S. Dep’t of Justice, 783 F.Supp.3d 105 (D.C. Cir. 2025).

[18] President & Fellows of Harvard Coll. v. U.S. Dep’t of Health & Hum. Servs., No. 25-CV-10910-ADB, 2025 WL 2528380 (D. Mass. Sept. 3, 2025).

[19] Id. at *26.

October 6, 2025 by Jack Frundt

Uncategorized

A HUMAN PROBLEM REQUIRES A HUMAN TOUCH: COMMUNITY AS THE ANSWER TO HOMELESSNESS

Many have experienced it: rolling up to a left turn light and there is someone standing there with a sign saying, “Anything helps. God bless.” What is one to do in that situation? A dollar bill feels insincere and possibly funding an underlying addiction, while directing them to a shelter feels insufficient. On any given night in Minnesota, approximately 9,000 people are homeless.^[1] Minnesota takes substantial steps to assist those experiencing homelessness including but not limited to supporting nonprofits and state-run programs^[2] to move people off the streets or keep families in their homes.^[3] Even though the number of homeless have decreased since 2020 and programs such as the Hennepin County Housing assisted 2,526 people from homelessness to permanent housing in 2024, still much work remains to be done. Additionally, “relapse” to homelessness poses an issue. The national average of those that return to homelessness after being in permanent housing is 18%.^[4] Is there a possible method to reduce the weight of this problem? Alan Graham believes the solution lies in fostering community.

Community, according to him, is common unity and the recognition that no one is better than anyone else.^[5] Paired with his definition of homelessness as a catastrophic loss of family, community becomes the home, the makeshift family for the person exiting homelessness. ^[6] Inviting the homeless into community heals recidivism to homelessness and provides hope for the broader community.

Graham, along with a host of donors, volunteers, and a team, has created a community outside the outskirts of Austin, Texas called Community First.^[7] It occupies 51 acres and is home to 470 formerly homeless people and has plans to expand to provide homes for 1,400.^[8] Yet the uniqueness rests not in its size but in the organization’s style: tiny-homes and RVs all focused on community and the stability it provides.^[9] Community First embodies its name in every aspect through communal kitchens, shared bathrooms, welcoming streets, community gardens, and an outdoor amphitheater.^[10] Residents can also support themselves through trades offered on campus including artwork, blacksmithing, woodwork, mechanical work, and a community market to name a few.^[11] Given the opportunity for creative pursuits, residents can work for themselves, pay their rent and have a greater sense of purpose while surrounded by those doing the same.^[12] The results speak for themselves–according to Community First’s data over the past seven years there is an 80% drop in drug use and 40% drop in alcohol use.^[13]

Community First upholds permanent housing with supportive community and not simply permanent housing as a standalone.^[14] “Community integration is a key predictor of housing stability for people with histories of homelessness.”^[15] For the chronically homeless, building relationships those around them help to ground them. Moreover, in order to set the stage for a successful transition from homelessness to permanent housing, this is paramount. A study published in 2020 shows “fostering a sense of belonging… could improve mental health outcomes” formerly homeless in permanent housing.^[16] Support and community stand as pillars for the integration of the homeless.

Community First offers a program called “Replication Pathways” to educate those interested in imitating their model.^[17] Sanctuary Indy is actively using the “Community-First Model” as the foundation for its campus.^[18] Springfield, Missouri began Eden Village, a spinoff created by a former employee of Community First.^[19] Other cities such as Denver have created their own version of a tiny home village with promising results in the increased mental health of the residents.^[20] The path appears rosy.

Still challenges exist and Community First has them in spades. For one, evictions still occur for residents who do not follow the rules: quiet hours, drinking or using drugs in the open, failure to pay rent, and cleanliness checks.^[21] The cultural adjustment from life on the streets or shelters to an atmosphere of tight rules can be a culture shock for some.^[22] Resistance from the surrounding neighbors and the city can pose issues as well. Community first was met with heavy resistance from the City of Austin until they decided to place their campus right outside Austin’s borders.^[23] Initially, neighbors guffawed at having an area of formerly homelessness placed adjacent to them because of the fear of rif raf and decrease in property values–neither of which has not come to fruition.^[24] Furthermore, some ex-residents and former volunteers leave disgruntled because the campus no longer has the small town feel as the expansions continue to allow an influx of ever-new faces occupying the new tiny homes.^[25] As a consequence, critics claim this steers Community First from its central goal of community and support alongside permanent housing. Nevertheless, Community First walks forward in its mission to house the homeless despite the real, human challenges that arise.

The question remains for Minnesota: Could this model exist and be successful, specifically in the Twin Cities? Generally, the policy stands to promote the creation of stable housing as opposed to prohibiting it.^[26] The sentiment to transition the homeless to shelters appears present in groups such as Align Minneapolis, which lists housing as a legislative priority.^[27] Beyond the restrictive zoning laws and regulatory barriers, the main issue is: replicating the relational culture through the intentional design.^[28] Frigid temperatures would pose a significant challenge to the open plan, which serves as the blueprint for Community First’s springboard to foster such a culture. Not only that, but their micro-homes are custom built to reduce costs, so many did not have bathrooms or kitchens within the confines of the home.^[29] This particular model would likely not align with the needs of people in a Minnesota winter. Nevertheless, this does not rule out the possibility of creative solutions. Eden Village in Springfield, Missouri has fully outfitted micro-homes while still retaining the community feel–and to boot, they face the additional challenge of each resident living with a disability.^[30] A community in Minnesota, would not have the same access to outdoor spaces for residents year round as they do in Texas, creative solutions could provide a stable connection for residents to the community.

A pipedream? Maybe. A possibility for the Twin Cities? Definitely. The funding toward various housing initiatives and shelters displays the openness of Minnesota to housing solutions. This paired with an ever-present population of homeless may pave the path for more stable and proven sites like Community First and Eden Village. No doubt the hurdles would be immense, but hurdling may be favorable over sitting on the sidelines with the unsettling feeling in one’s stomach as they pass another homeless person at a left-hand turn light.

^[1] 2024 Point in Time Count Summary, Minn. Interagency Council on Homelessness, https://mich.mn.gov/2024-point-time-count-summary (last visited Sept. 13, 2025)

^[2] Coordinated Entry Homeless Assistance, Hennepin County, https://www.hennepin.us/en/residents/human-services/coordinated-entry (last visited Sept. 13, 2025).

^[3] Family Homeless Prevention and Assistance Program (FHPAP), Minn. Hous. Fin. Agency, https://www.mnhousing.gov/rental-housing/grant-programs/active-funding/fhpap.html (last visited Sept. 13, 2025)

^[4] J. Tsai & T. Byrne, Returns to Homelessness: Key Considerations for Using This Metric to Improve System Performance, 113 Am. J. Pub. Health 490, 490-94 (2023).

^[5] Alan Graham, Welcome Homeless: One Man’s Journey of Discovering the Meaning of Home 129 (Thomas Nelson 2017).

^[6] Graham, supra note 5.

^[7] Ashley Southall, A Village of Tiny Homes Offers Shelter and Stability for Austin’s Homeless, N.Y. Times (Jan. 8, 2024), https://www.nytimes.com/2024/01/08/headway/homelessness-tiny-home-austin.html.

^[8] Community First! Village Capital Campaign https://mlf.org/capital-campaign/ (last visited Sept. 13, 2025).

^[9] Ashley Southall, A Village of Tiny Homes Offers Shelter and Stability for Austin’s Homeless, N.Y. Times (Jan. 8, 2024), https://www.nytimes.com/2024/01/08/headway/homelessness-tiny-home-austin.html.

^[10] Id.

^[11] Community First! Village, Mobile Loaves & Fishes, https://mlf.org/community-first/ (last visited Sept. 13, 2025).

^[12] Adrienne Herzog, Evaluating Homes for the Homeless: Psychosocial Factors of Tiny-Home Villages (B.S. thesis, Univ. of Oregon June 2019).

^[13] Joe Rogan, Episode No. 2181 featuring Alan Graham, The Joe Rogan Experience (July 26, 2024) (downloaded using Spotify).

^[14] Community First! Village, Mobile Loaves & Fishes, https://mlf.org/community-first/ (last visited Sept. 13, 2025).

^[15] A. Bassi, J. Sylvestre & N. Kerman, Finding Home: Community Integration Experiences of Formerly Homeless Women with Problematic Substance Use in Housing First, 48 J. Comm. Psychol. 2372, 2372–90 (2020), https://doi-org.ezproxy.stthomas.edu/10.1002/jcop.22423.

^[16] W. La Motte-Kerr et al., Exploring the Association of Community Integration in Mental Health Among Formerly Homeless Individuals Living in Permanent Supportive Housing, 66 Am. J. Comm. Psychol. 3, 3-13 (2020), https://doi.org/10.1002/ajcp.12459.

^[17] Community First! Replication Pathway, Mobile Loaves & Fishes, https://mlf.org/replication/ (last visited Sept. 13, 2025).

^[18] Rivkin, Jan, and Coelin P. Scibetta. “Community First! Village: Scaling Goodness?” Harvard Business School Case 725-443, May 2025. (Revised September 2025.)

^[19] Ashley Southall, A Village of Tiny Homes Offers Shelter and Stability for Austin’s Homeless, N.Y. Times (Jan. 8, 2024), https://www.nytimes.com/2024/01/08/headway/homelessness-tiny-home-austin.html.

^[20] Jennifer Wilson et al., A Fresh Look at Tiny Homes, Univ. of Denver Graduate Sch. of Soc. Work (Jan. 26, 2021), https://socialwork.du.edu/news/fresh-look-tiny-homes.

^[21] Ashley Southall, A Village of Tiny Homes Offers Shelter and Stability for Austin’s Homeless, N.Y. Times (Jan. 8, 2024), https://www.nytimes.com/2024/01/08/headway/homelessness-tiny-home-austin.html.

^[22] Id.

^[23] Joe Rogan, Episode No. 2181 featuring Alan Graham, The Joe Rogan Experience (July 26, 2024) (downloaded using Spotify).

^[24] Ashley Southall, A Village of Tiny Homes Offers Shelter and Stability for Austin’s Homeless, N.Y. Times (Jan. 8, 2024), https://www.nytimes.com/2024/01/08/headway/homelessness-tiny-home-austin.html.

^[25] Id.

^[26] Housing and Homelessness: Policies and Procedures, Minn. Dep’t of Human Servs., https://mn.gov/dhs/partners-and-providers/policies-procedures/housing-and-homelessness/ (last visited Sept. 13, 2025)

^[27] 2025 State Legislative Priorities, Align Minneapolis, https://www.alignmpls.org/legislativeadvocacy (last visited Sept. 13, 2025).

^[28] Shelby Blessing, Community First – Designing to End Homelessness in Austin, TX, Shared Space with Erin Peavey (Jan. 13, 2024), https://www.erinpeavey.com/sharedspace/community-first-designing-to-end-homelessness.

^[29] Community First! Village, Mobile Loaves & Fishes, https://mlf.org/community-first/ (last visited Sept. 13, 2025).

^[30] Eden Village, Springfield, MO, https://edenvillagespringfield.org/ (last visited Sept. 13, 2025).

October 6, 2025 by David Flynn

Uncategorized

Raising the Age of Criminal Responsibility

Amanda Piel

I. Introduction

Raising the age of criminal responsibility is necessary to align with the developments in our understanding of human brain development, reduce recidivism, and ensure a more just approach to juvenile offenders.

Currently, there is a lack of consistency and reasoning in the way we set milestones for children and adults. As Americans, we are allowed to drive a vehicle that can obtain speeds of a hundred or more miles per hour at the age of sixteen. We are allowed to go to war, obtain adulthood, and vote at the age of eighteen. Yet, we are not allowed to consume alcohol until the age of twenty-one. The law prohibits us from doing something that could permanently alter our brain chemistry and negatively impact our underdeveloped decision-making capabilities. However, science had nothing to do with determining the legal drinking age[1] As time has passed, scientific progress has supported raising the age for substance use, as the human brain does not fully develop until the mid to late twenties. [2]

The brain is the slowest-developing organ in the human body, yet it is responsible for critical thinking, decision-making, and impulse control. Because these cognitive functions are not fully matured in adolescents, their ability to assess risks and consequences is significantly different from that of an adult. Therefore, it is both logical, if not imperative, that we change our laws to allow those without fully developed brains more time to be rehabilitated before, oftentimes, condemning them to a cycle of criminality.

II. The History of the Age of Adulthood

The age of adulthood has changed throughout the centuries. Originally, the age of adulthood in the United States was set at the age of twenty-one.[3] However, due to the need for more bodies to make up the military during World War II, they made the draft age eighteen,[4] and following the Vietnam War, the age of voting was changed from twenty-one to eighteen, changing the age of adulthood to eighteen rather than twenty-one.[5]

When the age of adulthood was initially established, little consideration was given to the scientific understanding of human brain development—likely because such knowledge was not at the forefront of decision-makers’ minds, nor was it readily accessible or understood. However, with modern advancements in neuroscience, we now have a far deeper understanding of brain development than was imaginable at the time. Given these new findings, it is imperative to reevaluate the age of criminal responsibility for non-violent crimes to ensure our legal system reflects current scientific knowledge and developments.

III. The Science Behind Juvenile Brain Development

The prefrontal cortex is the portion of the brain “responsible for decision making, reasoning, personality expression, maintaining social appropriateness, and other complex cognitive behaviors.” [6] This portion of the brain takes the longest amount of time to develop. It is fully developed by a person’s mid to late twenties,[7] meaning prior to that age a person is lacking in their ability to fully make decisions, reason, and perform complex cognitive behaviors. This delay in brain development, particularly in decision-making abilities, is due to the extensive process called myelination. [8] Myelination strengthens neural connections, allowing for improved executive functioning skills such as planning, reasoning, and decision-making.[9] As this process continues well into a person’s mid-twenties, it would be sound to reason, and is often observed, that adolescents lack the same level of impulse control and risk assessment as fully developed adults.

IV. The Current Legal Landscape

The legal system in some form has acknowledged juveniles are different than adults. Juveniles are not allowed to be subjected to the death penalty. [10] Nor may a juvenile be sentenced to life without parole. [11] Scientific advancements were not where they are today when these decisions were made; however, in both decisions referenced above, there is an understanding of the differences between an adult and a child, and in Graham, there seems to be an explicit acknowledgement of the scientific basis for their decision.[12]

V. The Case for Raising the Age of Criminal Responsibility

If the age of criminal responsibility were to shift from eighteen to twenty-one, it would provide the juvenile justice system with more time to rehabilitate the offender during three additional and critical years of brain development, rather than place an offender without a fully developed prefrontal cortex in a system focused on punitive punishment. Punitive punishment during brain development can have negative effects on said development and the trajectory of a person’s life.[13] The use of a more rehabilitative and less punitive approach for these three extra years could decrease the rates of recidivism and improve the outlook for these young adults.

VI. Counterarguments and Challenges

Currently, the United States is set up to treat people as adults once they hit the age of eighteen. At eighteen, a person can vote, get married, go to war, but they still cannot drink or smoke. Because the United States treats individuals as adults once they reach the age of eighteen, there are several challenges to raising the age of criminal responsibility beyond this threshold. At eighteen, individuals gain significant independence, such as the ability to go to college, get married, and make other adult decisions. This newfound freedom may make it difficult to effectively monitor and influence their behavior during rehabilitation. Eighteen-year-olds might feel they are already fully capable of managing their lives, as the country treats them as adults. This could hinder efforts to emphasize the importance of rehabilitation, as they may believe they know better, despite their ongoing developmental immaturity.

Another challenge is determining how rehabilitation programs would be tailored for individuals of different ages. A fourteen-year-old and a twenty-year-old have had significantly different life experiences, which can make it difficult to decide how to approach rehabilitation for each. The differences in maturity, cognitive development, and life experiences would affect how effective certain therapies and rehabilitation strategies might be.

Also, housing a fourteen-year-old alongside a twenty-year-old in the same facility could present challenges in terms of programming and the physical environment. The differences in maturity, life experiences, and even biological development between these age groups could create uncomfortable or even unsafe living conditions. For instance, parents may not feel comfortable with their fourteen-year-old living with someone much older, especially considering the disparity in maturity. One potential solution to this issue could be to separate younger and older adolescents, placing individuals over eighteen in different facilities from those under eighteen.

VII. Conclusion

The age of eighteen for adulthood is an arbitrary number developed so the size of the army could be increased during times of war. However, today we are beginning to understand and recognize the complexity of the human brain and how its development is not complete at age eighteen, and because of such, the decision-making and impulse control of a person is inhibited.

Had there been sound reasoning back in the 1940s for changing the age of adulthood to eighteen, perhaps it would make sense to align the age of criminal responsibility with such. However, as science has continued to progress it has become evident the age of criminal responsibility in general should be twenty-one, unless such a crime is so heinous it requires additional consideration.

Therefore, it is both logical and necessary to reform our laws to reflect the scientific reality that those with underdeveloped brains should be given, and require, more time to mature before being subjected to punitive measures that can permanently entrench them in a cycle of criminality. By raising the age of criminal responsibility, we acknowledge juvenile offenders have the capacity for rehabilitation, ensuring a justice system that is not only fair but also effective in promoting long-term public safety and reducing recidivism.

[1] South Dakota v. Dole, 483 U.S. 203 (1987).

[2] Mariam Arain, et al., Maturation of the adolescent brain, 9 Neuropsychiatric Disease & Treatment 449, 459 (2013).

[3] Winthrop D. Jordan, Searching for Adulthood in America, 105 Daedalus (American Civilization: New Perspectives) 1, 2 (1976).

[4] 50a U.S.C. § 302 (1941).

[5] U.S. Const. amend. XXVI. Because if eighteen-year-olds are being required to go to war for their country, they should also be allowed to have a say in the running of their country.

[6] Rami M. El-Baba & Mark P. Schury, Neuroanatomy, Frontal Cortex, Nat’l Ctr. for Biotechnology Info. (May 29, 2023), https://www.ncbi.nlm.nih.gov/books/NBK554483/#:~:text=The%20prefrontal%20cortex%20is%20known,and%20other%20complex%20cognitive%20behaviors.

[7] Arain, supra note 2.

[8] Mara Nickel & Chen Gu, Regulation of Central Nervous System Myelination in Higher Brain Functions, 2018 Neural Plasticity 1, 2 (2018).

[9] Id.

[10] Roper v. Simmons, 543 U.S. 551 (2005). The U.S. Supreme Court ruled that the death penalty for juveniles is unconstitutional, finding juveniles are categorically less culpable than adults. This is due to their diminished capacity for rational decision-making and their susceptibility to being influenced by others. Id. at 569. This diminished capacity for rational decision-making is still lacking between the ages of eighteen and twenty-one due to the lengthy developmental process of the prefrontal cortex.

[11] Graham v. Florida, 560 U.S. 48 (2010). The Court ruled juveniles cannot be sentenced to life imprisonment without the possibility of parole for non-homicidal crimes, emphasizing that juveniles have a greater potential for change and rehabilitation.

[12] Id. at 68-69.

[13] Malcom Coffman, The Neurological Impact of Incarceration and its Effect on Recidivism, 37 Notre Dame J.L. Ethics & Pub. Pol’y 251, 262-65 (2023).

April 21, 2025 by Meredith LaVine

Uncategorized

Why National Security Laws Must Be Reformed to Protect the Rights of Marginalized Immigrant Communities in the United States

Monali Bhakta

I. Introduction

When people hear the phrase “9/11,” the first memory that pops into their mind is where they were on the morning when the Twin Towers fell. I recall watching clips of the catastrophe unfold on my TV screen as pedestrians were desperately running for survival as dark clouds of smoke transcended from the crashing buildings. My naïve, childlike brain assumed this was just a movie scene; it was not possible that this atrocity happened in real life. But it did happen, and little did I know that our reality as Americans would be forever changed in the years to come.

II. Overview of the USA PATRIOT Act

“Give me your tired, your poor, your huddled masses yearning to breathe free,” are the famous words etched on the Statue of Liberty in New York.[1] It serves as a symbol of hope for immigrants leaving their native homeland to courageously resettle in the United States. This changed after September 11^th, 2001. Many immigrants who aspired to pursue their “American Dream” were soon faced with uncertainty instead of hope due to harsh national security laws implemented in a post-9/11 era. Specifically, these were Arab, Middle Eastern, Muslim, and South-Asian immigrant communities (known collectively by the acronym of “AMEMSA”).[2]

An example of one of these national security laws was the USA PATRIOT Act, short for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism,” passed by Congress and signed into law by President George W. Bush on October 26^th, 2001.[3] The Act prevented and penalized terrorist activities in the United States and in the world by increasing law enforcement’s investigative capabilities to protect public safety.[4] However, the implementation of this law demonstrates how this was a reactive, emotionally-charged response, rather than one taken based on conflict resolution and cultural awareness. Instead of thoughtfully passing legislation to heal our nation from this devastating tragedy, Congress did not have public hearings or thoughtful discussions about the individual provisions of the PATRIOT Act before swiftly passing it.[5] While this Act was enforced to protect the American people during a scary time, this law was not meant to protect everyone, as shown by the devastating consequences that it had on AMEMSA communities.

One controversial provision was Section 412(a), which gave law enforcement the power to enforce mandatory detention for immigrants suspected of any kind of terrorism. It gave broad power to the Attorney General to take any immigrant into custody and detain them for at least 6 months if the federal government believed they violated immigration laws due to terrorism.[6] The Act also increased federal law enforcement’s authority to monitor both citizens and noncitizens by tapping international and domestic phones, which clearly violated individual privacy rights.[7] The government had overwhelming discretion to violate people’s due process rights, based on fear that they would be disloyal to the United States.[8]

III. The Collateral Damage of the USA PATRIOT Act

One way the U.S. government carried out harmful national security practices was by conducting mass dragnets. Mass dragnets were police operations where police officers would search a specific area to catch a terrorism suspect, largely based on racial profiling.[9] After 9/11, AMEMSA communities endured cruel treatment due to this systemic discrimination. Attorney General John Ashcroft admitted that minor immigration charges would be enforced to detain noncitizens if their investigations were ongoing. The targeted roundups of people from Muslim-majority countries—many of whom were from Pakistan and Egypt—did not reveal any direct connections to the terrorist attacks. In one roundup, about 100 people were charged with minor criminal offenses, and 500 others were detained for immigration violations, such as overstaying their temporary nonimmigrant visas.[10] In practice, the government’s national security interests appeared insincere and inefficient because it detained people with low-level offenses based on the arbitrary assumption that they are connected to terrorism. Not only is this irrational, but it undermines our system of justice.

The public opinion within AMEMSA communities is that the federal government’s national security laws perpetuated racial discrimination against people associated with the Islamic religion.[11] Race and religion were social constructs used to weaponize to fight the “war on terrorism,” where discrimination against marginalized immigrants was normalized within law enforcement. According to the American Arab Anti-Discrimination Committee (ADC), just 6 months after the 9/11 attacks, there were 600 cases of violence and 100 cases of workplace discrimination targeting Arab Americans. Meanwhile, there were 60 incidents of violence against students at schools and universities. Approximately 100 cases of discrimination against Arab Americans happened at U.S. airports, where more than 60 people were removed from airplanes based only on their physical appearance.[12] When the government acted complicit in this dehumanization, it was enough to shatter the human spirit within a vulnerable population, threatening people’s safety and security in this country.

Post-9/11 national security laws also had a detrimental impact on the South Asian community.[13] South Asians faced rigorous security screenings and were denied boarding on planes because security personnel presumed that their nationality would present a safety risk to other passengers. Specifically, South Asian Muslims were forced to experience humiliating and intrusive pre-boarding searches and intensive questioning before they were allowed to board their flights. People were forced to prove their innocence because of the prejudice associated with “flying while brown.” Despite not being a danger to the public, the civil rights of these passengers were violated.[14] Furthermore, this aggressive treatment happened so frequently, it coerced South Asian communities into silence instead of speaking out against this injustice.

IV. A Productive and Empathetic Path Forward

The U.S. government needs to strike a balance between enforcing national security laws and safeguarding the human rights of immigrants in the United States. While I wholeheartedly agree that our government must protect the lives of American civilians, that should not come at the expense of implementing discriminatory laws that target innocent, well-meaning immigrant communities. As a South Asian woman from a community negatively impacted by these national security measures, I empathize with the hostility and exhaustion immigrants feel when they are marginalized by their own government as they work towards a better life in the United States.

Even though I believe the United States should do everything in its power to protect the American people, the most productive way to achieve this goal is by implementing humanitarian and multicultural values within our national security laws. That will allow us to maintain our honor as a global leader in the world without sacrificing human rights as a tradeoff. Additionally, the U.S. government should empower underserved immigrant communities by listening to our lived experiences and developing culturally informed national security policy that adheres to the true meaning of the Statue of Liberty. And I look forward to contributing to this change in my legal career.

[1] Walt Hunter, The Story Behind the Poem on the Statue of Liberty, The Atlantic (Jan. 16, 2018), https://www.theatlantic.com/entertainment/archive/2018/01/the-story-behind-the-poem-on-the-statue-of-liberty/550553/.

[2] AMEMSA Fact Sheet (Nov. 2011), https://aapip.org/wp-content/uploads/2014/09/amemsa20fact20sheet.pdf.

[3] USA PATRIOT Act, Financial Crimes Enforcement Network, U.S. Treasury, https://www.fincen.gov/resources/statutes-regulations/usa-patriot-act.

[4] Id.

[5] Kevin R. Johnson & Bernard Trujillo, Immigration Reform, National Security After September 11, and the Future of North American Integration, 91 Minn. L. Rev. 1369 (2007).

[6] Drew Fennell, The Usa Patriot Act: Can We Be Both Safe and Free?, Del. Law., Summer 2003, at 10.

[7] Id.

[8] Id.

[9] Susan M. Akram & Kevin R. Johnson, Race, Civil Rights, and Immigration Law After September 11, 2001: The Targeting of Arabs and Muslims, 58 N.Y.U. Ann. Surv. Am. L. 295 (2002).

[10] Id.

[11] Ty S. Wahab Twibell, The Road to Internment: Special Registration and Other Human Rights Violations of Arabs and Muslims in the United States, 29 Vt. L. Rev. 407 (2005).

[12] Id.

[13] Charu A. Chandrasekhar, Flying While Brown: Federal Civil Rights Remedies to Post-9/11 Airline Racial Profiling of South Asians, 10 Asian L.J. 215 (2003).

[14] Id.

April 11, 2025 by Meredith LaVine