Works in Progress Group # 2 Housing Conditions and Pre-trial Detention

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Session Type: Works-in-Progress

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Applying Strict Scrutiny to Pretrial Detention

When the government substantially infringes upon a fundamental right, that intrusion is subject to strict scrutiny: the government must demonstrate that the intrusion is narrowly tailored to a compelling state interest. Professor Stanton's article begins by arguing that strict scrutiny is the appropriate standard for courts to apply in reviewing the circumstances and contours of pretrial detention. Next, the article turns to the implications of applying strict scrutiny to two aspects of pretrial detention: first, to the procedural rights afforded to a defendant attendant to any pretrial detention hearing; second, to the duration of pretrial detention, as related yet distinct from the defendant’s independent Sixth Amendment right to a speedy trial. As to the former circumstance, the article explains that would yield a robust hearing, with rights including limited discovery and a limited right to confrontation. As to the latter, the article explains that a narrowly tailored pretrial detention system must include strict time limits for trial. Salutary benefits of applying this framework would be a smaller population detained pretrial—with those released having not been proven to pose a sufficient risk to justify continued confinement—and a shorter overall duration of pretrial confinement for those that are adjudged, based on competent evidence, to pose an unjustifiable risk.

Unhealthy Housing: How Local Governments Over-Police and Under-Protect Tenants

The COVID-19 pandemic has spawned a new reality of work-from-home and stay-at-home public health guidance, reminding everyone that our homes should be respites of health and safety. Unfortunately, for tenants living with dangerous conditions, such as lead-exposure, mold, moisture, pest infestations, and lack of heat, reality is far different. There are well-documented links between substandard housing and an array of serious health conditions.

Rather than enforcing laws already on the books or passing new laws aimed at keeping tenants safe in their homes, many local governments have enacted dangerous “crime free” and nuisance property ordinances in recent years. These ordinances base enforcement on calls for police service, without consideration of whether calls were generated by victims of criminal activity, survivors of domestic violence, or individuals experiencing a health crisis. They are often discretionarily enforced primarily in low-income, Black and Latinx communities.

The harms these ordinances pose is the focus of an emerging body of research, as is the under-enforcement of laws aimed at protecting tenants from substandard housing. Yet these two trends have not been assessed together. Such a comparative analysis is critical to chart a path forward towards protecting tenants from unsafe housing without creating additional harms.

Professor Prochaska's article will summarize the existing research, analyze illuminating case studies, and set forth specific policy proposals aimed at curbing the spread of harmful ordinances and imposing meaningful tenant safeguards, which are particularly pressing as officials continue to ask tenants to stay home to protect us all from the hazards posed by the pandemic.