Wendy R. Calaway* & Jennifer M. Kinsley**
The issue of pretrial detention is part of a larger, national conversation on criminal justice reform. However, no single issue permeates the landscape of criminal justice like the treatment of pretrial defendants. The policies and practices around pretrial detention have contributed to the country’s mass incarceration numbers; created a crisis for local jail management; generated unsustainable budgets; and raised important questions about race, class, and the constitutional implications of incarcerating people because they are too poor to pay a money bond. Legal scholars have written about the issue, highlighting the inequities and constitutional difficulties with such a system. Much of the discussion has surrounded solutions involving the implementation of and reliance on evidence-based practices to determine pretrial detention, rather than solutions involving reliance on money. These evidence-based practices usually take the form of pretrial assessment tools and pretrial supervision systems. Because the politics involved in criminal justice reform often paralyze reform attempts, the method by which these practices are implemented is often litigation. However, due to procedural impediments in federal court and the polit- ical realities of state courts, litigation often results in incomplete remedies that do not fully address, rectify, or prevent the range of harms inflicted by the money bail system.
* Assistant Professor of Criminal Justice, University of Cincinnati Blue Ash College. J.D., University of Cincinnati College of Law.
** Professor of Law, Northern Kentucky University Salmon P. Chase College of Law. J.D., Duke University Law School.
Several states are barred by their own constitutions from spending public monies in support of sectarian institutions. The United States Supreme Court has manifested great ambivalence about the constitutionality of such limitations. Sometimes, the Court has impliedly endorsed them as a reasonable measure to assure that Establishment Clause guarantees are respected. At other times, the Court has suggested that such limitations are constitutionally disfavored, although the Court has not yet held that such amend-ments are per se unconstitutional. The Court’s most recent decision addressing state constitutional spending limitations, Trinity Lutheran Church of Columbia, Inc. v. Comer, adds another layer of complexity and confusion to an already muddled jurisprudence. That decision, unless modified, could have surprising implications that the Court is avowedly unwilling to endorse.
* Trustees Professor of Law, Capital University Law School, Columbus, Ohio.