Imagine the frustration you would feel if you opened your computer every day, tried to log onto a website, and were unable to use it. Now imagine the frustration you would feel if the reason you could not use the website was due to a disability you had and could not prevent. Would it make you angry if abled-bodied individuals could actively browse the same website you were excluded from, and there was little recourse to fix it?
In 1990, Congress enacted the Americans with Disabilities Act (ADA). The ADA is a federal law intended to curb discrimination against individuals with disabilities.[1] Title III of the Act prohibits discrimination in places of public accommodations. Because the Act does not mention websites within its list of “public accommodations,” the Federal circuit courts are left to interpret this Act when a case is within its Jurisdiction and specifically pertains to websites. As such, a circuit split has evolved regarding this issue presently: whether a website should be considered a place of public accommodation under the Act.
With little guidance from Congress as to whether websites should be considered a place of public accommodation subject to ADA regulations, several of the circuit courts have aligned with one another. The Seventh Circuit and First Circuit agree that the ADA does not limit public accommodations to physical structures.[2] On the contrary, the Third, Sixth, and Ninth Circuits agree that websites are limited to physical structures, and there must be a nexus of a physical location to determine that a website is a public accommodation.[3]
The best solution to this issue would be for Congress to clarify in the Act’s text and define whether all websites are places of public accommodation. Moreover, this blog argues that all websites should be categorized as places of public accommodation and subject to ADA regulations. This suggestion follows from the surge in technological advancement, specifically since the ADA was enacted.[4] The technological advancements within the last decade have proven that websites are used by all individuals in society. Another solution to resolving the federal circuit court split would be for the Supreme Court to grant certiorari for a case that involves this issue. The Supreme Court did have a chance to settle this issue in Acheson Hotels; however, the Court ultimately dismissed the case as moot.[5] Lastly, a final solution to resolving the federal circuit split would be to resolve the circuit split: specifically, the Circuit Courts can begin to apply the same approach to attack this issue–so that plaintiffs can expect a similar judicial approach to federal law.
Should the Circuit Courts agree on an approach, the Seventh and First Circuits approach should be used: there is a presumption that the ADA does not limit public accommodations to physical structures.[6] The Seventh and First Circuit’s analysis considers the effects technology has had on accessibility for the public at large, and especially for individuals with disabilities. The Seventh and First Circuits purposivism type approach will no longer allow individuals with disabilities to be excluded from the digital world in violation of the ADA. It accounts for the legitimate offerings in the digital world that individuals with disabilities should be entitled to access like able-bodied individuals. The Seventh and First Circuits recognize the ADA’s purpose– to stop discrimination against individuals with disabilities in general.
This circuit split has been shown to create differing results for Plaintiffs in similar circumstances seeking relief under the same Federal law. Individuals with disabilities will not be afforded the same or equal protection under the law as abled-bodied individuals until Congress amends the legislative text of the ADA, the Supreme Court makes a final ruling on how this issue should be resolved, or the Circuit Courts all begin analyzing website accessibility cases using the same analysis.
[1]A Brief History of the Disability Rights Movement, ADL (Mar. 5, 2017), https://www.adl.org/resources/backgrounder/brief-history-disability-rights-movement.
[2] Morgan v. Joint Admin. Bd., 268 F.3d 456, 459 (7th Cir. 2001); Carparts Distrib. Ctr. v. Auto. Wholesaler’s Ass’n, 37 F.3d 12, 19 (1st Cir. 1994).
[3] Herrera v. Humana, Inc., No. 23-11948 (MEF)(AME), 2024 U.S. Dist. Lexis 146411, at *4 (N.J. Aug. 15, 2024) (citing Menkowitz v. Pottstown Mem’l Med. Ctr., 154 F.3d 113 (3rd Cir. 1998)); Peoples v. Discover Fin. Servs., 387 F. App’x 179 (3rd Cir. 2010); Parker v. Metro. Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997); Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905 (9th Cir. 2019).
[4] Susannah Fox & Lee Rainie, Part I: How the internet had woven itself into American Life, Pew Rsch. Ctr. (Feb. 27, 2014), https://www.pewresearch.org/internet/2014/02/27/part-1-how-the-internet-has-woven-itself-into-american-life/.
[5] Acheson Hotels, LLC v. Laufer, 601 U.S. 1 (2023).
[6] William Goren, Absent a Gateway to a Physical Place, is an Internet Site Subject to Title III of the ADA: The View From Both Sides of the Argument, Understanding the ADA (Oct. 18, 2023), https://www.understandingtheada.com/blog/2023/10/18/absent-a-gateway-to-a-physical-place-is-an-internet-site-subject-to-title-iii-of-the-ada/.
Every year, as millions tune in to watch the Super Bowl Halftime Show, broadcasters face a complex challenge: navigating the Federal Communications Commission’s (FCC) content regulations while preserving artistic expression. This tension between regulation and creative freedom raises important questions about free speech, cultural expression, and the evolving nature of what society considers “offensive” content.
This year was no different as many wondered how Kendrick Lamar would approach this challenge. Many anticipated that he would perform his popular song “Not Like Us,”[1] and why shouldn’t he? “Not Like Us” was one of last year’s breakout hits, earning over one billion streams on Spotify and five Grammy Awards, including song of the year.[2] But out of the songs 919 words, roughly 38 likely would raise concerns in dealing with the FCC.[3]
To understand this challenge, we must first examine the legal framework. The FCC employs three distinct categories of regulated content: obscenity, indecency, and profanity.[4] Each category carries its own definition and legal standard, creating a complex web of guidelines that broadcasters must navigate.
Obscenity represents the most clearly defined category. The Supreme Court established a three-pronged test in Miller v. California: content must appeal to the average person’s prurient interest, depict or describe sexual conduct in a “patently offensive” way, and lack serious literary, artistic, political, or scientific value.[5] Because obscenity falls outside First Amendment protection, it’s prohibited across all broadcast platforms.[6] However, musical performances rarely trigger obscenity concerns.
Indecency and profanity present more nuanced challenges. The FCC defines indecent content as material that portrays sexual or excretory activities in a patently offensive manner but doesn’t meet the obscenity threshold.[7] The FCC evaluates indecency through contemporary community standards, a metric that inherently shifts with societal values.[8] The infamous “wardrobe malfunction” during Janet Jackson and Justin Timberlake’s 2004 Super Bowl performance exemplifies this category, generating over 540,000 complaints and resulting in FCC fines for CBS stations (though these fines were later overturned).[9]
Profanity occupies perhaps the most ambiguous territory. The FCC characterizes it as “grossly offensive” language that constitutes a public nuisance.[10] This definition encompasses the “seven dirty words” identified in FCC v. Pacifica Foundation, but extends to other terms on a case-by-case basis.[11] This flexibility creates significant uncertainty for broadcasters and performers.
The challenge of these regulations becomes apparent when we consider their inconsistent application. For instance, the FCC deemed rock star Bono’s use of “fuck” at the Golden Globes as indecent[12], while the same word in Steven Spielberg’s “Saving Private Ryan” was permitted due to its historical and social context.[13] This disparity raises questions about fairness and artistic freedom.
These concerns are particularly relevant in hip-hop, where language serves as a powerful tool for cultural expression and social commentary. As Joycelyn Wilson, a hip-hop studies professor at Georgia Tech, notes, “hip-hop’s language is intentional, whether poetic, confrontational or coded.” This artistic intention deserves the same contextual consideration given to other forms of expression.
The Supreme Court’s decision in Cohenv.California offers important perspective on regulating offensive speech. The Court emphasized that states cannot “cleanse public debate to the point where it is grammatically palatable to the most squeamish among us.”[14] This principle becomes increasingly relevant as society’s relationship with language evolves. In an era where the President of the United States discusses grabbing women by the “pussy”[15] and refers to some countries as “shitholes,”[16] the FCC’s approach to profanity regulation may need reconsideration.
The current regulatory framework presents several problems. First, its case-by-case approach to profanity leaves broadcasters and artists without clear guidelines. Second, the fluid nature of what society considers offensive makes consistent enforcement challenging. As Cohen wisely noted, “one man’s vulgarity is another’s lyric” – a maxim that resonates even more strongly in today’s diverse media landscape.[17]
This vagueness creates real consequences. Broadcasters, fearing FCC fines, often pressure artists to self-censor, potentially diminishing their cultural and social impact. During Kendrick Lamar’s 13-minute Halftime show, he performed eleven songs that spanned his career. Of those eleven songs, Lamar censored every single one in some way. Whether it was not rapping the iconic line of “Bitch, sit down, be humble” from “HUMBLE.”[18] or changing the lyrics in “Not Like Us” to remove phrases like “you not a colleague, you a fuckin’ colonizer.”[19] The sanitized version lost the raw power of the original critique. While this approach makes business sense, it raises concerns about artistic integrity and the role of controversial expression in public discourse.
The solution may lie in reconsidering how we regulate broadcast content in the modern era. Rather than relying on subjective standards of offensiveness, perhaps we need a more nuanced approach that considers context, artistic merit, and evolving social norms. This would better serve both broadcasters seeking clear guidelines and artists striving to make meaningful cultural contributions.
As we continue to grapple with these issues, one thing remains clear: the balance between regulation and artistic expression requires careful consideration. While the FCC’s mission to protect public airwaves is important, it must be weighed against the vital role of artistic expression in our cultural dialogue. Finding this balance may require us to embrace some discomfort, recognizing that meaningful artistic expression sometimes challenges our sensibilities – and that’s not necessarily a bad thing.
[1] Kendrick Lamar, Not Like Us, (Interscope Records 2024).
[2] Janeé Bolden, Kendrick Lamar Dominated Grammys With “Not Like Us,” Cementing His Place as West Coast Royalty, The Hollywood Reporter (Feb. 3, 2025) https://www.hollywoodreporter.com/news/music-news/kendrick-lamar-dominated-grammys-not-like-us-1236125989/.
[3] Artur Galocha, You cannot say that in the $%@! Super Bowl Halftime show!, Wash. Post (Feb. 8, 2025) https://www.washingtonpost.com/style/2025/02/08/super-bowl-halftime-show-lyrics-profanity-kendrick-lamar/.
[9] FCC v. CBS Corp. (11-1240). Seealso, Artur Galocha, You cannot say that in the $%@! Super Bowl Halftime show!, Wash. Post (Feb. 8, 2025) https://www.washingtonpost.com/style/2025/02/08/super-bowl-halftime-show-lyrics-profanity-kendrick-lamar/.
[13] Artur Galocha, You cannot say that in the $%@! Super Bowl Halftime show!, Wash. Post (Feb. 8, 2025) https://www.washingtonpost.com/style/2025/02/08/super-bowl-halftime-show-lyrics-profanity-kendrick-lamar/.
[15] Alexander Burns et al., Donald Trump Apology Caps Day of Outrage Over Lewd Tape, N.Y. TIMES, (Oct. 7, 2016), https://www.nytimes.com/2016/10/08/us/politics/donald-trump-women.html.
[16] John Hendel, Trump ‘Shithole’ Coverage Prompted More Than 160 Indecency Complaints, POLITICO (Apr. 3, 2018), https://www.politico.com/story/2018/04/03/trump-shithole-media-coverageindecency-complaints-454928.
Your daily morning routine might be worth skipping. The average adult uses nine personal care products a day, risking exposure to 126 different chemical ingredients. [1] Many of these chemicals are carcinogens.[2] Unsurprisingly, women are at a higher risk of being exposed to more carcinogenic chemicals in their everyday beauty products.[3] Why are toxic chemicals used in beauty products? Because they are cheaper for the company.[4]
The rampant use of toxic chemicals in cosmetics is the result of cosmetic products being largely unregulated by the Food and Drug Administration (FDA). Cosmetics remained the least regulated category within the FDA for many decades. [5] Theorists have suggested that this lack of regulation is due to misogynistic ideals about cosmetics and their association with femininity.[6] Additionally, examining this lack of regulation through an intersectional lens uncovers a disparate impact on women of color.[7] Cosmetic industries market heavily toward communities of color while pushing beauty norms centered around white beauty standards.[8] This results in women of color being at a higher risk of being exposed to unregulated and harmful cosmetic products.[9] Cosmetic regulation will play a key role in addressing these disparities and associated human health concerns.
In 1938, the first law that regulated cosmetics in the United States, the Federal Food, Drug, and Cosmetic Act, was passed.[10] Efforts to reform cosmetic safety have been met with pushback from industry players.[11] In 2022, the Modernization of Cosmetics Regulation Act was enacted.[12] This act aimed to improve the safety of cosmetics through heightened regulation of cosmetic producers. MOCRA includes requirements for facility registration, adverse effects reporting, mandatory recalls, product ingredient labeling and safety substantiation. [13] Despite these new requirements, MOCRA fails to address the issue of unsafe cosmetics in the industry.
Under MOCRA, cosmetic producers must adhere to safety substantiations. MOCRA requires that cosmetic producers conform to “adequate substantiation of safety” regarding their products.”[14] “Adequate substantiation of safety” is defined as conducting tests or studies that produce a “reasonable certainty” that the product is safe.[15] Further, “safe” only encompasses “customary or usual” uses of the product.[16] MOCRA does not set forth specific tests used to determine if a product is safe.[17] Moreover, MOCRA holds cosmetic producers to a weak standard to prove product safety. This allows cosmetic producers to downplay the risks of certain chemical ingredients.[18]
MOCRA requires product ingredient labeling but fails to address the bigger issue of what ingredients are actually being used. The United States currently has only 11 prohibited cosmetic ingredients.[19] In comparison, the European Union has banned more than 1,300.[20] The United States takes a reactionary approach by only banning ingredients proven to be harmful to human health.[21] The European Union takes a proactive approach by banning ingredients that might be harmful.[22] MOCRA’s product labeling requirement is largely performative in light of many toxic chemicals still being frequently used in products. Only requiring product labeling allows cosmetic producers to continue putting harmful ingredients in cosmetics under the guise of transparency.
Adding fuel to the fire, recent efforts by the Trump administration to cut federal funding puts acts like MOCRA in jeopardy.[23] States have taken measures into their own hands and enacted laws banning harmful ingredients from cosmetics including polyfluoroalkyl substances, also called forever chemicals.[24] These efforts to remove toxic chemicals from cosmetics are promising. However, improvement is still needed to have truly safe cosmetics.
The failure to properly regulate the cosmetics industry is the result of bad legislation and a disregard for women and minorities.[25] The common use of toxic chemicals in cosmetics is a serious health issue affecting many people.[26] The FDA needs to start taking a more proactive approach to regulating and banning toxic chemicals in cosmetics. Additionally, cosmetic producers need to start prioritizing consumer health over capitalistic greed.
[1] Exposures add up – Survey results, Env’t Working Grp. (Dec. 15, 2004), https://www.ewg.org/news-insights/news/2004/12/exposures-add-survey-results.
[2] Exposures add up – Survey results, Env’t Working Grp. (Dec. 15, 2004), https://www.ewg.org/news-insights/news/2004/12/exposures-add-survey-results.
[3] Exposures add up – Survey results, Env’t Working Grp. (Dec. 15, 2004), https://www.ewg.org/news-insights/news/2004/12/exposures-add-survey-results.
[4] Toxic Chemicals in Personal Care Products: The Need for the Toxic Free Beauty Act, Campaign for Safe Cosmetics (Aprl. 9, 2022), https://www.safecosmetics.org/blog/toxic-chemicals-in-personal-care-products-the-need-for-the-toxic-free-beauty-act/#:~:text=Why%20Are%20Harmful%20Chemicals%20Still,Free%20Beauty%20Act%20of%202021!
[5] Colleen Campbell, Intersectionality Matters in Food and Drug Law, 95 U. Colo. L. Rev. 1, 4 (2024).
[6] Colleen Campbell, Intersectionality Matters in Food and Drug Law, 95 U. Colo. L. Rev. 1, 4 (2024).
[7] Colleen Campbell, Intersectionality Matters in Food and Drug Law, 95 U. Colo. L. Rev. 1, 6 (2024).
[8] Colleen Campbell, Intersectionality Matters in Food and Drug Law, 95 U. Colo. L. Rev. 1, 6 (2024).
[9] Colleen Campbell, Intersectionality Matters in Food and Drug Law, 95 U. Colo. L. Rev. 1, 6 (2024).
[10] Anh-Thi Le, French-Tipped Formaldehyde: Why FDA’s Statutory Framework Enables Toxic Chemical Exposures in Manicure Products; How Rulemaking or Congressional Action Can Curb Its Detrimental Effect on Occupational Health, 75 Admin L. Rev. 393, 397 (2023).
[11] Anh-Thi Le, French-Tipped Formaldehyde: Why FDA’s Statutory Framework Enables Toxic Chemical Exposures in Manicure Products; How Rulemaking or Congressional Action Can Curb Its Detrimental Effect on Occupational Health, 75 Admin L. Rev. 393, 398 (2023).
[12]Modernization of Cosmetics Regulation Act of 2022 (MoCRA) U.S Food & Drug Admin. (Jan. 17, 2025), https://www.fda.gov/cosmetics/registration-listing-cosmetic-product-facilities-and-products#:~:text=The%20Modernization%20of%20Cosmetics%20Regulation,products%20many%20consumers%20use%20daily.
[13]Modernization of Cosmetics Regulation Act of 2022 (MoCRA) U.S Food & Drug Admin. (Jan. 17, 2025), https://www.fda.gov/cosmetics/registration-listing-cosmetic-product-facilities-andproducts#:~:text=The%20Modernization%20of%20Cosmetics%20Regulation,products%20many%20consumers%20use%20daily.
[17] Anh-Thi Le, French-Tipped Formaldehyde: Why FDA’s Statutory Framework Enables Toxic Chemical Exposures in Manicure Products; How Rulemaking or Congressional Action Can Curb Its Detrimental Effect on Occupational Health, 75 Admin L. Rev. 393, 405 (2023).
[18] Anh-Thi Le, French-Tipped Formaldehyde: Why FDA’s Statutory Framework Enables Toxic Chemical Exposures in Manicure Products; How Rulemaking or Congressional Action Can Curb Its Detrimental Effect on Occupational Health, 75 Admin L. Rev. 393, 405 (2023).
[19]Prohibited & Restricted Ingredients in Cosmetics, U.S Food & Drug Admin. (Feb. 25, 2022), https://www.fda.gov/cosmetics/cosmetics-laws-regulations/prohibited-restricted-ingredients-cosmetics
[20]Differences in cosmetic regulations between the EU and U.S, Pluschem, (Apr. 8, 2023), https://pluschem.com/blog/eu-and-us-cosmetic-regulations/
[21]Differences in cosmetic regulations between the EU and U.S, Pluschem, (Apr. 8, 2023), https://pluschem.com/blog/eu-and-us-cosmetic-regulations/
[22]Differences in cosmetic regulations between the EU and U.S, Pluschem, (Apr. 8, 2023), https://pluschem.com/blog/eu-and-us-cosmetic-regulations/
[23] The Upshot Staff, Which Federal Programs Are Under Scrutiny? The Budget Office Named 2,600 of Them, (Jan. 28, 2025), https://www.nytimes.com/interactive/2025/01/28/upshot/federal-programs-funding-trump-omb.html
[24] Clara Hudson, ‘Forever Chemicals’ Reckoning Hits Cosmetics With New State Laws, Bloomburg L. (Jan. 27, 2025), https://news.bloomberglaw.com/esg/forever-chemicals-reckoning-hits-cosmetics-with-new-state-laws. (Forever chemicals are named as such because they are resistant to breaking down)
[25] Colleen Campbell, Intersectionality Matters in Food and Drug Law, 95 U. Colo. L. Rev. 1, 6 (2024).
[26] Exposures add up – Survey results, Env’t Working Grp. (Dec. 15, 2004), https://www.ewg.org/news-insights/news/2004/12/exposures-add-survey-results.
In May of 2024, the Department of Justice (DOJ) invited public comment on the possibility of rescheduling cannabis.[1] Cannabis is currently a Schedule I drug under the Controlled Substances Act (CSA) and the DOJ has proposed the rescheduling of cannabis as a Schedule III drug under CSA.[2] This shift could have profound legal and regulatory consequences. This change, if implemented, would redefine how cannabis is treated under federal law, affecting criminal justice policies, medical research, taxation, and business operations.
Under the CSA, Schedule I drugs are classified as substances with a high potential for abuse and have no accepted medical use.[3] This classification has historically hindered research and led to severe criminal penalties for cannabis-related offenses.[4] Schedule III, in contrast, includes substances with moderate to low potential for abuse and has accepted medical applications, such as anabolic steroids and certain pain medications.[5]
The rescheduling process itself typically involves recommendations from agencies such as the Drug Enforcement Administration (DEA) and the Food and Drug Administration (FDA), followed by regulatory rulemaking.
Legal and Criminal Justice Implications
In terms of federal prosecution and criminal charges, moving cannabis to Schedule III would likely reduce the severity of federal criminal penalties for cannabis-related offenses.[6] While state laws have varied significantly, federal law under the CSA has continued to impose strict consequences for possession, distribution, and manufacturing of cannabis, such as mandatory sentences.[7] Rescheduling could prompt reforms in sentencing and potentially affect ongoing and past convictions. However, while rescheduling could influence sentencing reforms, it would not automatically expunge past convictions unless Congress enacts additional legislative measures.[8]
Currently, the Schedule I classification has created major barriers to scientific research on cannabis.[9] With a move to Schedule III, researchers would face fewer regulatory hurdles in obtaining cannabis for study than they currently face under a Schedule I designation.[10] This could lead to potential advancements in medical treatments and expanded FDA-approved applications. While Schedule III status reduces restrictions, cannabis would still be a controlled substance, meaning it would be subject to FDA regulations and prescription-based distribution rather than broad adult-use legalization.[11]
A significant impact of rescheduling would be on the cannabis industry’s financial operations.[12] Under Internal Revenue Code Section 280E, businesses dealing with Schedule I and II substances cannot deduct ordinary business expenses for federal tax purposes.[13] If cannabis moves to Schedule III, companies would gain access to tax deductions, improving profitability and reducing financial burdens on legal cannabis enterprises.[14] However, rescheduling might not fully resolve the banking challenges that cannabis businesses face. Many financial institutions remain hesitant to serve the industry due to ongoing federal restrictions.[15]
Even if cannabis is rescheduled, state legalization efforts and federal prohibition may continue to conflict. Some states have fully legalized cannabis for recreational and medical use, while others maintain strict prohibitions.[16] Rescheduling would not equate to full federal legalization but could signal further legislative changes down the line.[17]
A Path Forward
Rescheduling cannabis from Schedule I to Schedule III would mark a significant policy shift with broad implications for the legal system, medical research, taxation, and the cannabis industry. While rescheduling represents progress toward federal and social acceptance, full legalization and reconciliation between state and federal laws remain unresolved. Policymakers, businesses, and legal professionals must navigate these changes carefully to maximize benefits and address lingering challenges.
[4]See The National Academies of Sciences, Engineering, and Medicine, The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research 1 (National Academy of Sciences 2017) (claiming that ongoing restrictive policies on cannabis research have limited studies on its health effects in the U.S., leaving patients, healthcare professionals, and policymakers without the evidence needed to make informed decisions about its use); see, e.g., Martin D. Carcieri, Obama, the Fourteenth Amendment, and the Drug War, 44 Akron L. Rev. 303, 325 (2011) (“U.S. marijuana prohibition has long been motivated largely by racism”); see also Richard J. Bonnie & Charles H. Whitebread, The Forbidden Fruit and the Tree of Knowledge: An Inquiry Into the Legal History of American Marijuana Prohibition, 56 Va. L. Rev. 971, 1011 (1970) (“From a survey of contemporary newspaper and periodical commentary we have concluded that there were three major influences [on states’ decisions to criminalize marijuana]. The most prominent was racial prejudice.”).
[6] Joanna R. Lampe, Cong. Rsch. Serv., LSB11105, Legal Consequences of Rescheduling Marijuana 3 (2024).
[7] Joanna R. Lampe, Cong. Rsch. Serv., LSB11105, Legal Consequences of Rescheduling Marijuana 3 (2024).
[8] Joanna R. Lampe, Cong. Rsch. Serv., LSB11105, Legal Consequences of Rescheduling Marijuana 3 (2024).
[9] Dorothy C. Kafka, Cong. Rsch. Serv., LSB11227, Legal Effect of Marijuana Rescheduling on FDA’s Regulation of Cannabis 2 (2024).
[10]See Lindsay Stafford Mader, The State of Clinical Cannabis Research in the United States, 85 HerbalGram J. Am. Botanical Council 64, 67 (2010), https://www.maps.org/media/herbalgramnidamonopolyfeb2010.pdf (“While more people are able to obtain marijuana for treatment under some states’ laws, little research is being done to document the efficacy and safety of cannabis as a medicine.”)
[11] Dorothy C. Kafka, Cong. Rsch. Serv., LSB11227, Legal Effect of Marijuana Rescheduling on FDA’s Regulation of Cannabis 3 (2024).
[12] Joanna R. Lampe, Cong. Rsch. Serv., LSB11105, Legal Consequences of Rescheduling Marijuana 3 (2024).
On January 20, 2025, President Donald Trump issued an executive order titled “Protecting the Meaning and Value of American Citizenship,” attempting to redefine birthright citizenship. The order seeks to deny automatic U.S. citizenship to children born on U.S. soil if their parents are either undocumented immigrants or temporary visa holders.[1] However, this executive action is blatantly unconstitutional, as it directly contradicts well-established Supreme Court precedent and the clear text of the Fourteenth Amendment.
Despite political rhetoric surrounding birthright citizenship, the law has been settled for over a century. Multiple Supreme Court cases—including United States v. Wong Kim Ark (1898), Yick Wo v. Hopkins (1886), and Plyler v. Doe (1982)—uphold the principle that anyone born in the United States, regardless of their parents’ citizenship or immigration status, is automatically a U.S. citizen.
Trump’s order is already facing legal challenges, and a federal judge has issued a temporary restraining order blocking its enforcement.[2] The courts will inevitably strike it down—the president does not have the power to unilaterally rewrite the Constitution.
The Fourteenth Amendment states in pertinent part: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”[3] Additionally, the Fourteenth Amendment’s Equal Protection Clause states that no State shall “deny to any person within its jurisdiction the equal protection of the laws.”[4] The phrase “subject to the jurisdiction thereof” has been misinterpreted by anti-immigration advocates, but Supreme Court precedent firmly establishes its meaning.
While not a case about citizenship, Yick Wo v. Hopkins established that the Fourteenth Amendment applies to both citizens and noncitizens.[5] The Court struck down a discriminatory San Francisco law on Equal Protection grounds that targeted Chinese immigrants operating laundromats. The Court held that the Fourteenth Amendment “is not confined to the protection of citizens”[6] and that noncitizens are protected under the Equal Protection Clause’s guarantee that “any person” within a state’s jurisdiction shall receive the equal protection of the laws.[7] The Court applied the Fourteenth Amendment broadly, stating that its provisions are “universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality.”[8] It is important to note that this means noncitizens are within a state’s jurisdiction for Fourteenth Amendment purposes.
In United States v. Wong Kim Ark, the Supreme Court explicitly held that children born in the U.S. to noncitizen parents are U.S. citizens.[9] Wong Kim Ark was born in San Francisco to Chinese immigrant parents, and when he was denied reentry to the U.S. after traveling abroad, he challenged the government’s claim that he was not a citizen. The Supreme Court ruled in his favor, stating: “It is impossible to construe the words ‘subject to the jurisdiction thereof’ … as less comprehensive than the words ‘within its jurisdiction’ … or to hold that persons ‘within the jurisdiction’ of one of the states of the Union are not ‘subject to the jurisdiction of the United States.’”[10] In holding that persons “within the jurisdiction” of one of the states are “subject to the jurisdiction of the United States,” the Court in Wong Kim Ark made the Fourteenth Amendment’s birthright citizenship clause applicable to noncitizens.
In Plyler v. Doe (1982), the Supreme Court clarified that the Fourteenth Amendment’s birthright citizenship clause applies to nonresidents residing illegally in the United States.[11] Further, the Court clarified that undocumented immigrants are “within the jurisdiction” of the states where they reside. The case involved a challenge to a Texas law that sought to deny free public education to undocumented children. Texas argued that those who are illegally in the United States are not “within the jurisdiction” of the state.[12] However, the Court ruled against Texas: “Neither our cases nor the logic of the Fourteenth Amendment supports [a] constricting construction of the phrase ‘within its jurisdiction.’”[13] Because undocumented immigrants are considered “within the jurisdiction” of a state, and those who are “within the jurisdiction” of a state are “subject to the jurisdiction of the United States,” the Fourteenth Amendment’s birthright citizenship clause is applicable to undocumented immigrants.
In conclusion, the Fourteenth Amendment’s birthright citizenship clause extends to every person on U.S. soil—even those here illegally. The President cannot overturn the Constitution with an executive order.
[1] Protecting the Meaning and Value of American Citizenship, 90 Fed. Reg. 8449, 8449 (Jan. 20, 2025).
[2] Mike Catalini & Gene Johnson, A federal judge temporarily blocks Trump’s executive order redefining birthright citizenship, AP (Last updated Jan. 23, 2025), https://apnews.com/article/birthright-citizenship-donald-trump-lawsuit-immigration-9ac27b234c854a68a9b9f8c0d6cd8a1c.
The Walt Disney company is no stranger to the intricacies and the process of copyright litigation. In fact, Disney may be widely known as one of the most litigious companies in the modern world. So much so that the fundamental cornerstone of copyright protection today is colloquially known as the Mickey Mouse Protection Act due to Disney’s forceful lobbying for the bill in order to protect the copyright of their seminal character. But that is not to say that Disney has not been subject to the other side of copyright litigation. In fact, considering the number of internationally famous characters that Disney owns the rights to, it is inevitable that there would be multiple claims against them. However, as is typical of the mighty mouse, not many of them come to fruition. In 2017, Denise Daniels filed suit claiming that the concept for the movie Inside Out was stolen from a pilot she produced in the early 2000s and had pitched to Disney in the same years.[1] However, this suit was dismissed by the district courts and then affirmed by the appeals courts in 2020.[2] Some cases are not so easily dismissed, and Disney typically settles those out of court. Most recently this happened in a copyright claim against the movie Frozen in which Kelly Wilson sued claiming that the film stole core creative themes and the character of Olaf from her 2010 short film The Snowman.[3] After losing their motions to dismiss, Disney settled out of court for an undisclosed amount.[4] In 2020, a suit was filed against Disney for allegedly stealing nearly the entirety of the characters, plot, and theme of the movie Moana.[5] This lawsuit was eventually dismissed for failing to be filed in a timely manner after the film’s release.[6] However, following the release of Moana 2, the plaintiff, Buck Woodall, sued Disney again. This time the suit is claiming infringement from the series as a whole and seeks significantly higher damages.[7] Woodall has claimed that the total amount of damages owed to him in this case is around ten billion dollars, one of the largest amounts for a copyright suit ever. However, with Disney’s legendary legal division, it is unclear whether this claim will amount to anything.
For these sorts of copyright cases the plaintiff must prove that she “(1) ‘owns a valid copyright in [the work]’ and (2) Defendants ‘copied protected aspects of [Plaintiff’s work].’”[8] If there is no direct evidence that a defendant copied the work in question it may be proven by unlawful appropriation, which presumes the copying.[9] The second prong can be shown through evidence that the properties are substantially similar and that the infringing property contains protected elements of the plaintiff’s work.[10] The element of substantially similar is proven through a two-part analysis of the intrinsic and extrinsic test.[11] The intrinsic test looks at whether a reasonable observer would find “a substantial similarity of expression of the shared idea.”[12] The extrinsic test analyzes “whether two works share a similarity of ideas and expression based on external, objective criteria.”[13] Finally, the plaintiff must also show that the defendant had access to the work.[14]
Copyright suits often fail at the hurdle of proving access or substantial similarity to the protected work. However, in the original lawsuit by Woodall against the first Moana film, the judge denied Disney’s motions to dismiss based on the substantive grounds of access and substantial similarity.[15] Disney did not dispute the intrinsic element in the first lawsuit. Instead they relied on expert testimony to refute the similarities.[16] The access portion was also quite heavily weighed in Woodall’s favor as there is evidence that Woodall prepared not only a presentation package for Disney via an intermediary but also an animated trailer.[17] The similarity between the protected works in this case seems to extend far beyond the ones in the Frozen case by a vast degree. Instead of one copied character and general themes for a portion of the film, there is evidence to support numerous copied characters and entire plotlines. Although the evidence against Disney seems overwhelming in this case, and it might likely be settled for a large sum, one can never underestimate the power of the mouse
Houselessness, commonly called homelessness, is on the rise in Vermont. Vermont has the second highest per-capita rate of houselessness in the country, behind only California.[2] Houselessness in Vermont increased by 151% from 2020 to 2022, the largest percentage increase of all the states.[3] Mental illness and addiction are the most prevalent challenges faced by people experiencing housing insecurity and houselessness.[4] Vermonters experience higher than average rates of addiction disorder and disability.[5] External factors causing houselessness in Vermont include the rising cost of living, a housing shortage, and natural disasters.[6]
At the onset of the COVID-19 pandemic, Vermont used federal funds to implement the Vermont General Assistance Housing Program, which provided emergency motel housing program for people experiencing houselessness.[7] People who met eligibility requirements could receive vouchers to stay in vacant hotels.[8] As quickly as the summer of 2021, Vermont Governor Phil Scott began phasing out the program in anticipation of the program becoming financially unsustainable once federal funds disappeared.[9]
In July 2024, the Vermont legislature’s Act 133 introduced a cap on the number of rooms and limited residents to an 80 day stay.[10] Is 80 days enough time for someone to save up money from a minimum wage job to afford a security deposit on an apartment, a month’s rent for the apartment, and transportation costs from a new apartment to their job, all while living in a motel and trying to afford exorbitant Vermont food prices? Nevermind for an individual, imagine trying to save up for all of these expenses as a parent of multiple children, too.
Trying to track down all of the changes the program underwent over the past few years is dizzying. But what is even more dizzying is trying to find housing among frequent changes to the eligibility requirements, time limits on staying in the motel rooms, and caps on the number of rooms. Each new restriction drives hundreds of people out of the motel rooms.[11] People phased out of the program and who can no longer live in the motel rooms have these options: live in their personal vehicle, stay with family or friends, camp out in a tent, live on the street, or find an emergency shelter.
Even though the state forced an estimated 1,000 people to leave their motel rooms between September and October, those same people will be eligible again for motel housing once again starting on December 1.[12] In the winter months, the cap on the number of rooms available and the eighty day stay limit will disappear.[13] Municipalities and the state are opening shelters to accommodate people displaced by the phasing out of the motel program.[14] For example, the state is opening two shelters in Waterbury that can house 17 families.[15] It is doubtful, however, that the upcoming shelters can house all of Vermont’s houseless population. Even the motel program was insufficient; people who did not use up their eighty days were still denied access to a motel room because of a lack of space.[16] People may hesitate to reapply for a motel program voucher. Caution could stem from all of the recent dehumanizing changes within the program, like forcing people out of housing in October only to let them back in in December.[17]
Vermont’s solutions to houselessness have dehumanizing undertones. In the transition from the motel program to shelters, the state fails to adequately inform motel program participants about the shelters, provide transportation provided to the sites, and provide basic amenities like showers and storage space.[18] For the new shelters in Waterbury, families must undergo an intake process to be admitted.[19] There appears to be no publicly available criteria for what this intake process consists of, which is worrisome. By what standard would a houseless family be more deserving of housing than another houseless family?
Another problem with Vermont’s motel program is the shadiness happening behind the scenes. For example, a motel owner improperly withheld $3,300 of security deposits per occupant.[20] These deposits were supposed to be given to motel room occupants who stayed in the motel room program for at least four months and left their rooms in good condition.[21] The motel owner, who operates five of the motels involved in the motel program, is supposed to pay back the improperly withheld security deposits.[22] So now, instead of getting the financial relief these unhoused people desperately needed when they left the motel, they were robbed of the money they were entitled to and potentially remain in financial distress. To get the wrongfully withheld money, unhoused people have to work with the Attorney General’s office, adding to the stress of being unhoused.[23]
In sum, the Vermont General Assistance Housing Program is constantly embroiled in a frenzy of sudden changes that make finding housing even more chaotic for people experiencing houselessness. The state needs to find ways to protect people accessing the motel program from wrongdoing and stop imposing arbitrary time limits and room limits. Should the state completely phase out the motel program, the shelters acting as a replacement for the program must be accessible and provide basic amenities to promote the dignity of unhoused people in Vermont.
After this November’s Presidential Election, some liberals are calling for Justice Sonia Sotomayor to step down before the next administration takes office.[1] The calls for Justice Sotomayor’s resignation are out of fear about her dying in office, as the late Justice Ruth Bader Ginsburg did, giving President-elect Trump another appointment that will alter the balance of the Court.[2] Additionally, Liberals argue that even if Justice Sotomayor survives another four years, Democrats are not likely to regain control the United States Senate for at least another decade.[3] Justice Sotomayor is currently 70 years of age.[4] Persons assigned the sex of female at birth in the United States lived on average 80.2 years in 2022.[5] However, liberals often point out that Justice Sotomayor has type one diabetes to strengthen their argument.[6]
The appointment process for federal judgeships became highly politicized in 2013. Harry Ried, who was the United States Senate Majority Leader at the time, got his Democratic colleagues in the Senate to end the filibuster for lower federal court judges.[7] Senator Reid took this extraordinary measure after 41 Republicans consistently blocked the two-thirds majority vote needed to approve President Obama’s lower court nominees.[8] Predictably, just three years later in 2017, under a Republican controlled United States Senate, Senator Mitch McConnell got his Republican colleagues in the Senate to end the filibuster for United States Supreme Court nominees.[9] Thus, now only a simple majority vote in the United States Senate is needed to “advise and consent”[10] on all federal judicial nominees. Arguably, one-third of the United States Senate blocking a democratically elected majority from confirming a judicial nominee is bad. However, the Public’s increased perception of the Supreme Court as political is worse.
Public confidence in the United States Supreme Court is at its lowest point in three decades.[11] Many United States Citizens view the nine Justices of the Court now simply as politicians in black robes. This is concerning because a free and independent judiciary is key to upholding the rule of law in a democracy.[12] If the public views the Court as an extension of politics, then the Court’s role in our constitutional democracy is weakened. Public outcry for a Justice to resign because of partisan politics is the type of danger that President George Washington alluded to in his 1796 Farewell Address.[13] Justices have a duty to uphold to the United States Constitution, unless they cannot fulfill their constitutional obligation, they should not be ousted by party politics. However, once hundreds of years of public trust is eroded it is not easily regained.
Democrats and Republicans must reach a compromise that de-politicizes the nomination and confirmation process for federal Judges and Justices. Since the founding, Supreme Court Justices have served on the Court for life.[14] This system worked fine however times have changed.[15] Justices and Judges are no longer approved by the Senate based on their qualifications for the job but rather based on their own personal jurisprudence.
Term limits are the way to de-politicize the Court. In 2021, President Biden established a Commission to investigate possible reform measures.[16] The Commission recommended an 18-year term limit system that would give each president two nominations.[17] The Commission made this recommendation after gathering testimony from scholars and legal professionals across the ideological spectrum.[18] Additionally, the Commission found that Chief Justice Roberts, Justice Kagan, and Justice Breyer have expressed benefits to term limits.[19] However, our elected leaders have yet to engage in a serious bipartisan effort to pass the Commission’s recommendations into law. Until then, the Court’s role in our constitutional democracy remains in limbo.
Most people know what forensic science is thanks to the many television shows and movies where they see scientists in lab coats looking through microscopes, analyzing fingerprints or fibers, and providing evidence to put the bad guy behind bars. In reality, forensic science is “the application of scientific or technical practices to the recognition, collection, analysis, and interpretation of evidence for criminal and civil law or regulatory issues.”[1] Forensic evidence’s admission to courtrooms is often governed by the Federal Rules of Evidence Rule 702. Rule 702 essentially states that a qualified expert witness can testify if it is more likely than not that “(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”[2] While these methods may seem infallible, and indeed are often stated by “experts” to be so, they are far from perfect and have been causing wrongful convictions for decades.[3]
The issue with some forensic science methods in the courtroom is that many of them have not been rigorously tested. This means that we do not know whether these methods are even remotely accurate. In courts, the Frye standard emerged in 1923 and stated that scientific evidence needed to have gained general acceptance in the particular field to which it belonged to be allowed in the courtroom.[4] The Federal Rules of Evidence came along in 1975 allowing scientific evidence or fact into the courtroom if it would help the jury understand the evidence or determine the fact at issue and the witness was qualified. Then the Supreme Court decided in 1993 that trial judges were to be the gatekeepers of expert evidence[5] and only evidence that has been tested, peer reviewed or published, and had standards, and was generally accepted should be allowed.[6]
Forensic methods such as hair analysis, 911 calls, blood-pattern analysis, bite mark analysis, fingerprint analysis, and roadside drug tests have been challenged numerous times and even debunked. But courts still allow juries to hear such evidence.[7] For example, experts regularly testify that a match of 5-15 points on a human fingerprint is enough to identify a perpetrator.[8] However, there are 75-125 points that can be compared on a fingerprint and no research has been done to show if that low bar is sufficient.[9] This means we have sent people to prison on as little as a 6.7% match with no idea if that is enough. In one disturbing case, a man was sent to prison for 28 years based on hair analysis placing him at the scene of a murder. He was declared innocent however when it came to light some of the hairs the FBI assured a jury were his were actually dog hairs.[10] Many advanced courses for forensic methods like fingerprint analysis are offered to law enforcement. The courses claim to provide sufficient foundation for officers to testify as “expert” witnesses in the courtroom despite requiring as little as one week of education. Such courses include forensic clothing examination, forensic pathology, cognitive interview and statement analysis, latent fingerprint comparison and analysis, and arson investigation.[11]
Multiple government reports point to the need for more rigorous testing of forensic methods, but little progress has been made.[12] As per the National Research Council, copious forensic evidence is introduced into trials without any meaningful scientific validation or reliability testing.[13] The President’s Council of Advisors on Science and Technology also found forensic methods lacking validity and reliability.[14] The Council thoroughly reviewed available literature and received input from the FBI Laboratory, judges, prosecutors, advocates, and leading industry and academic scientists. The report recommended that forensic methods should have clear error rates and should be empirically tested through blind testing (no researcher knows what the correct answer is), with sufficiently large numbers of samples and scientists, and making the data publicly available.[15] At a minimum, to usefully testify about items sharing a source (this would include fingerprint, blood-pattern, bite mark, firearm mark, hair comparison, and more), a witness should need to tell the trier of fact how often items with the observed similarities are actually a match (i.e., provide an error rate).[16]
Unfortunately, law enforcement does not want to stop using these methods because they help them catch suspects and judges are hesitant to overturn precedent.[17] Proponents may claim these forensic methods can simply be dissected on cross-examination if the results are so dubious. However, once a witness is set up as an “expert” their credentials and the credibility of their opinion has already been established and are difficult to tear down.[18] We should not be relying on opposing council, who is likely not a scientist, to convince a jury that the expert they just heard is wrong. The Department of Justice and some presidential administrations have also delayed progress saying that these reports are attacks on forensic science.[19] This is despite the DOJ stating in 2015 that 90% of its cases relying on microscopic hair analysis amounted to false testimony because of the inaccuracy of the method.[20] Further, between 1989 and 2019 the National Registry of Exonerations documented 553 cases where someone was wrongfully convicted based on questionable forensic evidence and later found innocent.[21] This is certainly a far cry from Sir Blackstone’s maxim that “it is better that ten guilty persons escape than that one innocent suffer.”
The best way forward would be to adjust the Federal Rules of Evidence once again to reflect the importance of testable, valid scientific evidence. A clearer rule might look like “a witness who is qualified by experience, training, and education may testify in court if the proponent demonstrates that the methods used by the expert were (a) subjected to rigorous testing, (b) produce an error rate of at most 5%, (c) have been validated by other scientists using blind testing, and (d) the testimony reflects a reliable application of the method to the specific facts of the case.” Implementation of this rule could decrease rates of wrongful conviction, push forensic scientists to adopt rigorous testing methods, and decrease corruption from self-proclaimed forensic “experts” willing to say anything on the stand.
[1] President’s Council of Advisors on Science and Technology, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods 1 (2016).
For some Americans, the concept of cash bail may be limited to an experience of their thimble avatar inauspiciously landing on the corner Go to Jail space on a Monopoly board. For countless others, the realities of cash bail present an insurmountable barrier preventing release from county and city jails across the country. Every day, approximately 700,000 Americans are held in jails awaiting trial or plea deals; 60 percent of whom suffer incarceration because they cannot afford to pay the secured bond to await their next court date unbound by law enforcement.[1]
Jails are predominately populated with people who cannot afford to pay cash bail to secure their release. As a result, American tax payers spend approximately $38 million dollars a day, tallying close to $140 billion a year on pretrial detention.[2] As a growing choir of dissenting voices criticize the entrenched cash bail system, beacons of change emit from legislatures across the United States. In the last few years, several states passed progressive bills modifying their pretrial detention laws (New Jersey, New Mexico, New York, and the District of Columbia). One state, Illinois, completely banned cash bail.[3]
Opponents of cash bail argue that pretrial detention resulting from unpaid secured bonds are unjust, ineffective vestigial appendages of 13th-century English common law with shameful roots in American slavery.[4] Those accused of an offense—not convicted—must pony up hundreds or thousands of dollars to avoid being locked up while awaiting their court appearance. Cash bail is a “faulty and unreliable metric to determine whether someone could be a danger to their community and whether they pose a flight risk.”[5] Indeed, the ability to pay cash bail may be more indicative of a person’s resources to flee rather than to appear in court at a subsequent criminal proceeding.[6] Studies also report higher rates of recidivism stemming from the negative effects of pretrial detention.[7] In sum, the jailhouse gates become a revolving door for those unable to make bail and subjected to the experience of incarceration.
Pretrial incarceration can yield devastating consequences, including job loss, inability to care for children, and housing forfeiture. These consequences disproportionately impact minority and lower income populations.[8] Just two days in jail can increase the likelihood and length of incarceration, reduce economic viability, induce recidivism, and create health risks for largely low-risk defendants.[9] Sadly, judges are statistically more likely to hand down an active jail sentence for individuals who have served pretrial detention.[10] Of the 60% of jail inmates who cannot afford cash bail, many may wait weeks, months, or even years for trial, clogging county and city jails. Meanwhile, jail stays have gotten longer, further subjecting at-risk groups to the negative effects of incarceration. Between 1983 and 2013, the average length of jail visits jumped from 14 to 23 days.[11] Many defendants awaiting trial plead guilty in plea arrangements—irrespective of their culpability in an alleged defense—because they are desperate to get out of jail.[12] Many of these plea arrangements exchange time served (largely an artifact of the inability to pay) for guilty pleas to lesser offenses, cementing criminal offenses on a person’s record.
As the choir of voices admonishing the injustices of the cash bail system around the country swell, several states and organizations have taken various measures to address this problem. However, most of these measures fall short of abolishing cash bail. Vermont, for instance, passed legislation that prohibits the levying of cash bail only when an individual has been “charged with an expungement-eligible misdemeanor” while leaving the door open for judicial discretion to continue to set cash bail.[13] Private organizations have taken a work-around approach by establishing bond funds—whereby bail amounts are paid out of a collective pool of capital.[14]Money refunded after court appearances is then redeposited into the bond fund, creating a recyclable cash purse for petitioning individuals looking to secure cash bail.[15]
Only one state has abolished cash bail. Beginning September 18, 2023, Illinois’ Pretrial Fairness Act (PFA) “eliminated the use of cash bail in all criminal cases [and] prohibited pretrial detention altogether for most defendants.”[16] Supplanting the requirement to cough up cash to avoid pretrial detention, the PFA institutes a series of new timelines and measures to reduce the number of jail detainees awaiting trial. Beginning with law enforcement, the PFA authorizes officers to issue citations for many low-level offenses rather than jailing offenders.[17] Currently in Illinois, “cite and release” is presumed for low-level misdemeanors.”[18]Next, the PFA requires that individuals who are detained for higher level offenses must appear before a judge within 48 hours.[19] Conversely, many states avoid such a tight timeline for first appearances with vague statutory language requiring only that defendants face a judge “without undue delay.”[20] Furthermore, the PFA places the burden on prosecutors to prove “by clear and convincing evidence [that a] condition of release is necessary” to jail a person pending trial.[21]
As the first state to abolish cash bail, Illinois’ move may seem unprecedented. However, the PFA merely echoes what the federal criminal courts accomplished in 1984, under the Federal Bail Reform Act, by implementing hearings to weigh a defendant’s danger to a community and issuing non-financial conditions for pretrial release.[22] Mirroring the federal system, Illinois courts are now tasked with risk assessment hearings to determine whether to release or hold individuals accused of offenses in lieu of cash bail.[23] One year after implementation of the PFA, this judicial assessment requirement has been associated with more thoughtful and substantive hearings focused on relevant case issues and evidence.[24] Subsequently, judges predicate pretrial detention on specific facts and circumstances rather than a template cash bail order for conditional release.[25] Risk assessment hearings empower Illinois courts to detain accused defendants who may have otherwise posed a risk to the community, while drastically reducing the number of pretrial inmates who have been charged with low-level offenses. Keeping low-level offenders out of jail minimizes the adverse effects of pretrial detention and leads to safer communities.[26]
Proponents of cash bail often cite community safety as a principal concern to preserve the money-for-release system.[27] However, data suggests that the implementation of risk assessment hearings instead of cash bail is making Illinois safer.[28] For example, under the cash bail model, suspects in domestic violence cases who could pay to secure their release were free to return back to their previous victims. Now, under the PFA, victims receive higher levels of protection due to statutory requirements to notify victims of a defendant’s release.[29] Additionally, risk assessment protocols empower judges to deny bond to offenders charged with misdemeanor domestic assault—a group previously released on cash bail.[30] Since the PFA was enacted, opponents’ concerns about public safety issues related to the abolition of cash bail have been unsubstantiated.[31] In fact, one year after the PFA became law, Illinois has seen reduced failure to appear rates and a 12 percent drop in violent and property crime, evidencing that the PFA is bolstering defendant accountability while making communities safer.[32]
In sum, the Illinois law has replaced the capacity to pay for pretrial freedom with substantive measures that assess the accused’s potential threat to society while awaiting trial. As a model for other states, the PFA shirks centuries of unjust policy, replacing a regressive monetary measure of a person’s flight and danger risks with evidence-based risk assessment. By focusing on the nature of the alleged offense, a defendant’s specific case, and the relevant evidence presented in a hearing, jurisdictions can better evaluate which individuals should be detained pretrial—a metric that, historically, has failed to be qualified by cash bail.
[1]Report: The End Money Bail Act, Data for progress (2023), https://www.dataforprogress.org/end-money-bail.
[6] Paul B. Wice, Freedom for Sale: A National Study of Pretrial Release 5 (1974).
[7]See Will Dobbie et al., The Effects of Pretrial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges,” 108 Am. Econ. Rev. 201-240 (2018).
[8]See Norma Cantu, The Civil Rights Implication of Cash Bail, U.S. Comm’n on Civ. Rts. (2022), https://www.usccr.gov/files/2022-01/USCCR-Bail-Reform-Report-01-20-22.pdf.
[9]Incarceration’s Front Door: The Misuse of Jails in America, Vera Inst. of Just. (2015), https://www.vera.org/downloads/publications/incarcerations-front-door-summary.pdf.
[16] Patrick Griffin et al., The First Year of the PretrialFairness Act, Loy. Chi. Ctr. for Crim. Just. (Sept. 24, 2024), https://pfa-1yr.loyolaccj.org/; 725 Ill. Comp. Stat. 5/110-1.5.
[18] Lisel Petis, A Model for the Nation? Tips from Illinois on Eliminating Cash Bail, R Street (Sept. 18, 2024), https://www.rstreet.org/commentary/a-model-for-the-nation-tips-from-illinois-on-eliminating-cash-bail/.
[20]See Conn. Gen. Stat. § 54-63(c); Haw. R. Penal P. Rule 5; Ind. Code Ann. § 35-33-7-1; Iowa Code § 804.21-804.22; Kan. Stat. Ann. § 22-2901; Ky. RCr Rule 3.02; MCR 6.104; Mont. Cod Ann. § 46-7-101; N.M. Stat. Ann. § 31-1-5; N.Y. CLS CPL § 120.90; N.D.R. Crim. P. Rule 5; Okla. Stat. tit. 22, § 1105; Pa. R. Crim. P. 516; R.I. Super. R. Crim. P. 5; S.D. Codified Laws § 23A-4-1; Tenn. R. Crim. P. Rule 5; Utah Code Ann. § 77-7-23; V.R.Cr.P. Rule 3; Va. Code Ann. § 19.2-80; W. Va. R.Cr.P., Rule 5; Lisel Petis, Navigating Bail Reform in America: A State-by-State Overview, R Street 64 (Feb, 2024), https://www.rstreet.org/research/navigating-bail-reform-in-america-a-state-by-state-overview/ “The phrase ‘without necessary delay,’ which is used in many states, lacks clarity and invites a variety of interpretation. Introducing a defined time limit of 24 to 48 hours ensures a swifter delivery of justice, preventing unnecessary delays in future court proceedings.”
[26] Lisel Petis, Navigating Bail Reform in America: A State-by-State Overview, R Street 64 (Feb, 2024), https://www.rstreet.org/research/navigating-bail-reform-in-america-a-state-by-state-overview/.
[27]See Allie Preston, The Case for Cash Bail Reform, CAP20 (Sept. 19, 2022), https://www.americanprogress.org/article/cash-bail-reform-is-not-a-threat-to-public-safety/.
[28] David Pierce, New SAFE-T-Act Enhances Protection for Domestic Violence Victims in Illinois, News Channel ABC 20 (Oct. 28, 2023), https://newschannel20.com/news/local/new-safe-t-act-enhances-protection-for-domestic-violence-victims-in-illinois.
[31] Megan Hickey, End of Cash Bail in Illinois Has Not Resulted in More Crime, But Has Impacted Court Systems, CBS NEWS CHI. (Sept. 12, 2024), https://www.cbsnews.com/chicago/news/cash-bail-illinois-one-year-later/.
Submissions The Vermont Law Review continually seeks articles, commentaries, essays, and book reviews on any subject concerning recent developments in state, federal, Native American, or international law.
