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We all feel unfairness deeply when treated in rash ways. We expect, and the law requires, government officials to take fairness seriously, giving us notice and an opportunity to be heard before taking our rights away. That is why the U.S. Constitution commands, twice, that no one shall be deprived of life, liberty, or property without due process of law. Yet, in overheated debates, people argue that others do not deserve any presumption of innocence. In courtrooms and colleges, police stations and jails, restaurants and libraries, print and online, the democratic value of due process is up for grabs.
Why is due process under so much pressure? Brandon Garrett exposes widening fault lines. One division lies within our own attitudes, and he explores why we are tempted to put desired outcomes before fair process. Another lies in government, as judges adopt toothless due process rules. People are trapped in debt for unpaid traffic fines; sheriffs seize and forfeit belongings; algorithms suspend teachers’ employment; officials use flawed data to cancel healthcare; and magistrates order arrestees to be jailed because they cannot pay cash bail. Meanwhile, the rise of AI threatens what remains of due process with black-box technology.
To fight against such unfairness, lawyers try to challenge unjust systems, researchers demonstrate why such processes are so counterproductive, and lawmakers try to enact new protections. Common ground matters now more than ever to mend political polarization, cool simmering distrust of government, prevent injudicious errors, and safeguard constitutional rights. A revival of due process is long overdue.
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Cover
Table of Contents
Dedication
Title Page
Copyright
Preface
1 Introduction
What is due process?
A due process breakdown
The current threats to due process
A roadmap
Notes
2 Divided about Due Process
Studying fairness
Procedural justice
The rise of crime control
Error aversions
Common ground
Dignity and due process
Notes
3 The Rise of Modern Due Process
The Goldberg case
Hearings for the poor
Origins of due process
On notice
A day in court
The right to a lawyer
An impartial judge
The burden of proof
The underlying entitlement
Buried process rights
Notes
4 The Hidden Cost of Unfair Process
How would you balance the costs?
Cost-benefit analysis
The cash bail process
Changing the cash bail system
The cost of a hearing
The cost of fines and fees
Speeding to poverty
Rethinking due process balancing
Notes
5 Connecting the Stakes
Access to justice
Connected rights
Life
Liberty
Property
Cumulative constitutional rights
Political rights
Family rights
Immigration rights
Super due process for some
Neglected constitutional rights
Notes
6 Error-Prone
Error preferences
System errors
Errors in granting benefits
Food stamp errors
The need for testing
Errors of criminal justice
Error-ridden data
Appeals
Quality control systems
Notes
7 Discriminatory Process
Unequal process in Ferguson
Biased officials
Inequality and distrust
Equal process
Failure to address race
Race and bail
Racialized mass incarceration
Rethinking cost-benefit analysis
Ferguson today
Notes
8 Processed by AI
Digital due process
Defining AI concepts
AI and risk assessments
A right to glass-box AI
Testing AI
Discovery and AI
Requiring glass-box AI
Notes
9 Due Process Reforms
Changing systems
Improving notice
Improving opportunities to be heard
We should defend due process
Due process on campus
Due process online
Regulating AI
Digital hearing rights
Group due process rights
Reforming court procedures
Notes
10 Due Process for All
Due process on all sides
Blind justice
Sympathy and due process
Due process and distrust
Fair trial rights
Due process and the rule of law
Defending due process
Notes
Appendix
Notes
Acknowledgments
Index
End User License Agreement
Cover
Table of Contents
Dedication
Title Page
Copyright
Preface
Begin Reading
Appendix
Acknowledgments
Index
End User License Agreement
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To Kerry, Alex, and Zack
Brandon L. Garrett
polity
Copyright © Brandon L. Garrett 2025
The right of Brandon L. Garrett to be identified as Author of this Work has been asserted in accordance with the UK Copyright, Designs and Patents Act 1988.
First published in 2025 by Polity Press
Polity Press65 Bridge StreetCambridge CB2 1UR, UK
Polity Press111 River StreetHoboken, NJ 07030, USA
All rights reserved. Except for the quotation of short passages for the purpose of criticism and review, no part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher.
ISBN-13: 978-1-5095-6388-3
A catalogue record for this book is available from the British Library.
Library of Congress Control Number: 2024934583
The publisher has used its best endeavours to ensure that the URLs for external websites referred to in this book are correct and active at the time of going to press. However, the publisher has no responsibility for the websites and can make no guarantee that a site will remain live or that the content is or will remain appropriate.
Every effort has been made to trace all copyright holders, but if any have been overlooked the publisher will be pleased to include any necessary credits in any subsequent reprint or edition.
For further information on Polity, visit our website: politybooks.com
“Tell your client to stop making that noise,” the hearing officer instructed, as my homeless and mentally ill client cringed. “If he does that again, he will have to leave the room.” The story of this book begins with that ill-tempered hearing officer. I was not yet a lawyer, but a recent college graduate who had moved to New York City to work at a nonprofit called the Urban Justice Center, where my role was to assist people who lacked housing or faced eviction. My client’s paltry monthly welfare benefits were for him a lifeline, and at this hearing I was helping him challenge the city’s decision to cut off those benefits. People had a right to a hearing, but no right to a lawyer if they could not afford one, so having someone like me serve as an advocate was better than nothing. And I had no idea what to do.
What noise was the hearing officer even talking about? My client did not know either, and he became quite distressed, crying and muttering in confusion. The hearing officer then ordered my client out of the hearing room. Only then did he complain that my client’s plastic bag – with all of his worldly belongings inside it – and which he was holding under the table in embarrassment, was twisting as he held it. The light crackling sound the bag made was “disrespectful,” the hearing officer said. “You need to control your client.” I left the room, reassured my client, and we returned. After we had explained why it was an error to cut off the benefits, the hearing officer ordered them to be restored, but I left thinking that he had not behaved in the way a judge should act.
I did not know it at the time, but “due process” was the legal phrase that expressed how unfair that hearing felt. In college, I had become interested in helping people without housing after volunteering at a soup kitchen and resource center. That work convinced me that I wanted to be a lawyer. A year later, when I began law school, a professor assigned a case called Goldberg v. Kelly on the first day of class. I had never read a Supreme Court decision before and did not realize that my work before law school traced back to this 1970 ruling. In Goldberg v. Kelly, Justice William Brennan wrote that the Due Process Clause of the Fourteenth Amendment prevents state officials from depriving a person of life, liberty, or property without due process of law. This means that people facing loss of welfare benefits are entitled to be given notice and an opportunity for a hearing before the government can take away their benefits. The Goldberg case had been brought on behalf of poor people living in the very same lower Manhattan neighborhood where I had lived and worked. I was amazed that the U.S. Constitution had defined this work. None of the hearing officers had ever mentioned due process. My clients certainly didn’t know about it, and neither did I.
After becoming a lawyer, I represented innocent people who had been wrongly convicted, and were subsequently exonerated by DNA evidence. Working for Barry Scheck and Peter Neufeld, co-founders of the Innocence Project, I saw a different type of due process violation. My clients knew they were innocent of the serious crimes they were wrongly accused of – they protested their innocence to anyone who would listen – and yet they were all convicted. As a law professor, first at the University of Virginia and, since 2018, at Duke University in North Carolina, I began to study their cases, collecting data and digesting scientific research. That work led to my first book, Convicting the Innocent, which examined the cases of the first 250 people exonerated by post-conviction DNA testing. I learned that it takes a team, including scientists as well as lawyers, to dig into complex unfair systems. Over the years, that teamwork inspired this book.
At Duke University, I founded a center dedicated to reforming the criminal justice system, called the Wilson Center for Science and Justice. Some of our earliest work in North Carolina involved digging into due process concerns with low-level traffic cases. We began pioneering work studying driver’s license suspensions and the impacts of fines and fees. We unpacked court data and learned that one in seven adults in North Carolina had a suspended license – not for unsafe driving, but for unpaid tickets and missed court dates. Exposing the vast size of those problems, and how hard it is for people to regain their rights, opened my eyes to a new type of unfairness.
And then, during the first weeks of the COVID-19 pandemic in early March 2020, I took on a role that suggested a new way to solve entrenched due process problems. In 2016, Maranda ODonnell was arrested in Harris County, Texas, which includes the city of Houston, for driving with a suspended license to her mother’s house in order to pick up her 4-year-old daughter. ODonnell’s bail was set according to a fixed written schedule that the judicial officers had to follow in Harris County, Texas at the time. Like hundreds of thousands of others, she did not have a public defender. At a brief hearing, the hearing officer set cash bail at $2,500 – more than she could afford – and she was jailed. Later, ODonnell joined a civil rights lawsuit challenging these bail practices as an unfair due process violation. In 2019, the parties entered a settlement in court, the first of its kind in the country, which required that most people arrested for misdemeanors be promptly released without having to pay for their freedom.
Since March 2020, I have served as the court-appointed monitor for the settlement, along with my old friend, law professor Sandra Guerra Thompson from the University of Houston Law Center, and new collaborators, including economics professor Songman Kang from Sungkyunkwan University in Seoul, Korea, and political scientist Dottie Carmichael from Texas A&M University. As monitors, we closely studied the bail reforms in Harris County. What we learned surprised us. We knew that ending the cash bail system would free tens of thousands of people each year who would otherwise have ended up in jail. But we consistently found that these reforms also powerfully benefited public safety. Every year since the reforms took effect, misdemeanor arrests and rearrests have both declined. People may think that locking more people in jail makes them safer. Instead, freeing tens of thousands of people made the larger Houston community safer. We can have due process, live in a fair society, and enjoy more security.
Those findings fit well with what I was learning from large surveys of people’s beliefs about due process. At around the same time that I began that bail reform work, I had started work on a series of studies with my former colleague at the University of Virginia, law professor and psychologist Gregory Mitchell. We were exploring how people view tradeoffs between due process and public safety. We found something both troubling and important: most people care about due process, but they are not only concerned with avoiding wrongful convictions. Most are equally concerned with not setting guilty people free. Our work deeply changed how I think about how people balance fairness and other values.
It was at Duke that I first met computer science and engineering professor Cynthia Rudin when we taught a session for judges about artificial intelligence (“AI”) and risk assessment. We began to collaborate on a series of projects. Rudin’s work powerfully informed my understanding – which was very rudimentary – of how AI works, and, more important, how to prevent AI from violating our rights. Cynthia and her collaborators have shown time and time again that AI performs just as well if it is not a black box, and that there is often no good justification for unfair AI systems.
Finally, in this book, I describe my work with the Dean of Duke Law School, Kerry Abrams, who, most importantly, is my wife. In our wonderfully busy lives, we have found the time to write two articles together. We described the concept of cumulative constitutional rights and the ways in which constitutional rights can be mutually reinforcing. That idea also turns out to be very important for due process, because often people lose other rights when the government treats them unfairly.
This book grew from a common mission shared with these and many other inspiring people who I will introduce in these pages. I realized that so much of the work that we were doing together revolved around preventing violations of due process. Today, due process faces serious threats in workplaces, courthouses, AI systems, and in polarized public debates about fairness. And we can defend due process, together.
Do you remember the first truly unfair thing that happened to you? Did you ever mutter “not fair” when an elementary school teacher, without giving you a warning or a chance to explain, punished you for something small, like talking in class to ask a classmate a question? Did you think that the teacher judged you too hastily? Did you lose respect for the teacher as a result?
Even at a young age, we feel unfairness deeply. When we feel that we have been treated unfairly, we aren’t always upset just by the outcome alone. We may also feel frustrated that we did not get to share our point of view, explain what happened, or contest the other person’s version of the facts. In short, we are upset that we did not receive a fair process.
If we are treated unfairly, sometimes we can do something about it. “Due process” is the legal term for a decision-making process that is fair. Due process entitles us to fair treatment from the government, and it is an important part of the court system. It is the basis, for example, of the right to a fair trial. We can insist on our due process rights, including in court, and in criminal and civil matters.
Although due process is very important, we also have a human tendency to want to deny it to people, particularly those we find unworthy. Take the trial of former Minneapolis police officer Derek Chauvin, convicted of George Floyd’s murder, in one of the most notorious police killings in American history. Some thought Chauvin did not deserve to receive a lengthy criminal trial, given that the killing was captured on video, for all to see. One college student put it this way: “I understand the due process of the law, but blatant murder cases like this should go over without a single question or moment’s hesitation of whether Chauvin would be convicted or not.”1 Many people likely shared that view.
A fair process in a court of law is important even when the facts seem incontrovertible. It is not just about getting the right outcome, but also showing that we are committed to making sure the process is fair. After the guilty verdict, Minnesota Attorney General Keith Ellison, who brought the prosecution, said he was “grateful we have a system where everyone, no matter how egregious their offense, is entitled to due process and fair treatment.”2 That sentiment is not always a very popular one, though. In this book, I explore how due process has come under pressure, and how to escape a battleground mentality to defend fairness for all.
It is not an accident that the concept of due process is central to many different important debates. Fairness matters to us personally and it matters to society. Today, complaints abound that people are given too much or too little due process in courtrooms and colleges, police stations and jails, restaurants, and libraries, in print media and online. While people may feel unfairness in any of those settings, our system is particularly concerned with protecting people from unfair treatment by the government, which the U.S. Constitution protects in two important clauses.
The concept of due process is as old as our nation. In 1789, the first U.S. Congress quickly adopted, and the states ratified, a group of amendments to the Constitution, which we call the Bill of Rights. The Fifth Amendment safeguards the pre-existing English concept of due process, stating that the federal government may not “deprive any person of life, liberty, or property without due process of law.” Due process rights are so important that they were repeated in a later amendment to the Constitution. Ratified after the Civil War, the Fourteenth Amendment filled an important gap by commanding that state governments, like the federal government, may not deprive persons of due process.3 As Supreme Court Justice Felix Frankfurter put it: “The history of American freedom is, in no small measure, the history of procedure.”4
Constitutions throughout the world reflect the same principles, as does international law. As the Universal Declaration of Human Rights puts it: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal.”5 The 1966 International Covenant on Civil and Political Rights (ICCPR), ratified by 170 countries, provides: “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”6 And the European Convention on Human Rights states: “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”7 Whether it is called due process or the right to a fair trial, the concept is foundational around the world.
Due process, or fair trial rights, require that governments provide three fundamental protections to people: (1) notice of an accusation by the government, (2) an opportunity for a person to be heard in response, and (3) a neutral and impartial person – often, a judge – who will hear both sides before reaching a decision. Despite these protections, we continue to see examples of serious due process violations.
Take, for example, the challenges faced by a Florida resident, Chianne, when trying to keep her Medicaid health benefits. She was first alerted to a problem when she called her health plan, United Healthcare, to change her provider, three months after giving birth. The agent informed her that her coverage would be terminated at the end of the month. Chianne panicked – her 1-year-old child had been on Medicaid since being diagnosed with cystic fibrosis, a serious disease affecting the lungs and other organs.8 In addition to caring for her newborn baby, Chianne was caring for her toddler around the clock, while also being a full-time student. Without Medicaid, Chianne and her husband could not afford physical therapy, a nebulizer and chest compression vest to assist breathing, and life-saving prescription drugs that cost $26,000 a month without insurance. Given the high stakes of this government decision, due process protections should be very strong.
Imagine how you might design this process to make it more fair at the outset. Perhaps you would make sure that the government told the person that their health care coverage was about to end, why, and what they could do about it. Especially for people with urgent health needs, that should not be too hard or too costly.
Now consider what happened next to Chianne. After getting off the phone with the agent, she checked her Florida Department of Health online portal and saw a twelve-page document titled “Notice of Case Action.” Reading it, she was more confused. The document listed all four people in her household as ineligible, stating: “YOU ARE RECEIVING THE SAME TYPE OF ASSISTANCE FROM ANOTHER PROGRAM.” Chianne was unaware of what that might refer to. Additional language said: “YOUR HOUSEHOLD’S INCOME IS TOO HIGH TO QUALIFY FOR THIS PROGRAM.” It did not explain why their income was too high. Finding the rest of the letter equally bewildering, Chianne recalled writing down “17 or 18 questions that I had regarding the inconsistencies and confusing language.”
If you were in that situation, what would you do?
The next day, Chianne called the state information line to see if a conscientious state employee could fix the problem. The agent said: “I’m not going to sit here and answer your questions,” and “I don’t know why you’re not getting this.” When Chianne asked specific questions, the agent responded, “I have a rule that says I cannot talk to you for more than 20 minutes.” Talking to a person clearly did not help.
Now what would you do? You might try to appeal. However, the online document Chianne read included a threat: “You will be responsible to repay any benefits if the hearing decision is not in your favor.” This too was false: a state is only allowed to seek money back from a person who has engaged in intentional fraud.9 But Chianne did not know that, could not afford a lawyer, and did not request an appeal.
Did Chianne receive any of the three elements of due process? The first element requires adequate notice of the government’s action. Chianne had no idea her family might lose health coverage. The state did post a confusing document on the online health portal. Should due process also make sure that the reasons stated be understandable and accurate? Indeed, federal law requires sending the person a “clear statement of the specific reasons” before altering or ending Medicaid benefits. That is how the law complies with the requirement of due process.10 Turning to the second element, an opportunity to be heard, Chianne did not request a hearing, fearing a further financial penalty. As a result, she never benefited from the third element of due process, an impartial judicial officer, who could have considered her evidence. In sum, there are good reasons to think Chianne failed to receive due process.
You could no doubt come up with a process much fairer than the one Chianne experienced. A fairer process for reviewing people’s eligibility for health care coverage might include a much clearer explanation of any possible change in coverage, a chance for a person to submit information, and a way to talk through the concern with a person who could correct mistakes. If that fails, perhaps everyone should be able to appeal to a neutral judicial officer, and maybe even benefit from the help of a lawyer or advocate.
These types of procedures might cost something to put into place, but they would also prevent costly errors. In Chianne’s case, the Florida state agency did not just give bewildering information; what information it did give was false. The law clearly provided that a person enrolled in Medicaid had one year of coverage after giving birth, regardless of any changes in their income or circumstances.11 Chianne had no idea – and no one told her – that she was entitled to coverage for a year after her younger child’s birth.
And consider the costs of what happened to Chianne next. With no coverage for medical daycare or prescription drugs, Chianne’s older daughter with cystic fibrosis lost her appetite “and was constantly tired and moody due to her sodium being low.” When she developed a “loud, persistent cough,” her parents could not, without coverage, go to a primary care doctor, so they waited for hours in the emergency room, adding to the bills they could not pay. The financial and health costs were enormous.12
In response, Chianne and other families did eventually get lawyers from two nonprofit health justice groups, which sued claiming that the system violated people’s due process rights.13 That lawsuit is still pending. Will it succeed? Even if it does, how long will it take? These types of lawsuits often take years, and, in the meantime, Chianne and her fellow plaintiffs have lost health care and suffered. During the COVID-19 pandemic, Congress provided uninterrupted Medicaid benefits, which expired on March 31, 2023, when states were free to review people’s eligibility. As a result, and within months, millions of people lost Medicaid coverage, including many who were in fact still eligible.14 In a few states, like Florida, people sued to challenge Medicaid “unwinding,” but in most states, no lawyers brought cases.
Yet, Chianne should not have had to sue. If the system had been designed to provide due process, she and others facing questionable eligibility determinations should have been able to have errors corrected before they lost health care. Due process should have been built into the system. We need to be regulating government agencies far more to make sure that they respect due process.
Major due process failures like this don’t just happen accidentally. Most of the people affected, like Chianne, are poor and vulnerable. In a society with deep social and political divisions, treating such people unfairly does not create a public debate, a political issue, or result in much media coverage in Florida, or in other states.15 This reflects a deeper problem: far too many of us are complacent about a larger unwinding – one that threatens due process itself.
In this book, I defend due process and argue that we need it more than ever in an intensely politically and socially polarized world. I think that the current threats to due process are particularly urgent. Three forces have combined to accelerate these threats in society: disengaged judges, technology, and polarization.
First, in the courts, judges place less value on due process. American judges are following the lead of the U.S. Supreme Court, which has stepped back from earlier rulings recognizing the importance of procedural fairness. When deciding what process is due, judges should place a premium on how the government treats people, rather than on what the government says it does on paper.
Second, technology has accelerated the process of sharing large quantities of information. This has made it possible for government officials to rapidly affect the due process rights of millions of people. Just like other government officials, judges may trust automated systems without understanding how they work.
Third, there is a risk of polarization because of people’s belief that their side is right – the other side is wrong – and that the other side deserves to be silenced or punished. These tendencies can be reinforced by social and political divisions, and by technology like social media, which has made it easier for people to share information, creating an amplifying effect around opposing views. If people do not treat each other fairly, this can contribute to a more general culture of indifference to due process.
These forces may encourage people to rush to make a judgment about the other side, but if due process and procedural fairness are not safeguarded, then soon enough all sides will be in the same boat. For example, community advocates who pushed for bail reforms in Illinois sought more due process: “We need to stand for people to have the presumption of innocence.”16 Prosecutors, sheriffs and police organizations opposed the bill; as one former prosecutor put it: “They care more about protecting criminals than protecting victims.”17 Yet, the same police unions that have often led the calls for less process at bail hearings have also complained that disciplinary hearings for police officers accused of misconduct provide them with too little due process.18 All sides benefit from a commitment to due process.
Threats to due process can also be self-reinforcing. The more people lose faith in due process and denigrate fairness as mere window dressing, the more they distrust the system. In an authoritarian society without the rule of law, no one trusts the process – everyone assumes it is rigged – and it seems naive to bother with procedural niceties. In some online settings, we see the same thing: when digital platforms perform poorly, people see the system as broken, and they flee the space. When entire governments fail to protect due process, though, physical escape can be difficult if not impossible. The result can be a due process death spiral.
As you read this book, you might think that you could never be placed in these types of unfair situations – perhaps you have never been arrested, received a fine you could not pay, or had benefits taken away by an algorithm. I invite you to put yourself in others’ shoes and imagine what it feels like to be denied due process. And imagine how vulnerable we all will be if due process continues to erode. Each chapter in this book examines a different way in which we have failed to safeguard due process, before turning to solutions.
What if you could be charged with a crime without any presumption of innocence? In the United States, the Supreme Court has held that the Due Process Clause requires proof of guilt beyond a reasonable doubt in a criminal case. What creates the basic threat to due process is that most people do not fully appreciate the idea – a bedrock assumption of our legal system – that it is vital for the government to carefully follow a legal process. I describe scientific research on this problem in Chapter 2, including studies that I have done with Gregory Mitchell, surveying thousands of Americans.19 We find that while people do strongly value fairness, most of them do not put it first over other outcomes, like public safety, which means that judges must be proactive in protecting due process.
What if state officials rely on an algorithm to cut off your disability benefits, which you need to treat chronic illness, and, when asked why, they respond, “We can’t you tell that, it’s a trade secret”? In Chapter 3, I describe how such unfair situations and systems proliferate because officials value having unfettered discretion and, in response, judges are reluctant to step in, viewing due process protections as flexible and loose. The U.S. Supreme Court Justices have baked tradeoffs into due process doctrine, weakening its protections.
What if a local sheriff takes your family’s entire life savings from your car, without even charging you with any crime? That is what happened to a man driving through Harris County, Texas, under a procedure called civil forfeiture. In Chapter 4, I describe the ways that judges allow unfair processes to multiply, because they find that the benefits to the government outweigh the costs to people. Yet, if judges carefully examined these practices, they would see that the full social costs can often be quite substantial and unjustified for people and for entire communities.
What if local officials take custody of your child, based on a red flag from a risk-screening tool? Not only would such a process be unfair, but it would implicate other important rights of parents. In Chapter 5, I show how important it is to understand the full stakes of a due process violation that harms life, liberty, or property, and that also harms other individual rights.
What if police use an error-prone eyewitness lineup technique to send an innocent man to prison? To this day, local officials still use methods proven to be highly inaccurate, even in criminal cases. As I describe in Chapter 6, judges often do not consider the prevalence of outright errors when examining possible due process violations. This leads the government to systematically harm innocent people and let people who do violate the law off the hook.
What if the only question the judge asks when you appear in court is: “How much can you pay?” That is what Keilee Fant was asked, by a judge in Ferguson, Missouri, in a court system that became infamous after a Department of Justice investigation exposed rampant unfairness and racial discrimination. Such abuses – where local governments prey on poor and minority residents to raise money – will multiply when due process goes unprotected. As I describe in Chapter 7, vague processes give government officials more discretion, which can then foster discrimination, and greater harms to vulnerable individuals and groups.
What if a faulty artificial intelligence (AI) system costs you your job? That is what public school teachers argued happened to them when the Harris County, Texas, school district began to use a new secretive program to evaluate classroom performance. Similar challenges have been brought against the use of automatic systems, whether using AI or simpler methods, to cut off unemployment benefits, to score the risk that a person might commit a crime, and to match a person’s face to a photo from a crime scene. As I describe in Chapter 8, growing government use of secretive “black-box” AI systems frustrate any hope of due process. Given the fast pace of technological change, the need for due process protections is urgent.
What if a high school student is suspended for an entire year of school, based on the say-so of a school official? While school and campus safety is important, students should have a fair chance to be heard before missing months or years of school. Students and communities have started to push back against such unfair rules, and people have also begun to successfully reform cash bail, fines and fees, unfair uses of AI, and more. In Chapter 9, I lay out a due process reform agenda. If the courts do not step in – which for decades they largely have not done – then we should demand that lawmakers act.
What if a biased judge could closely manage your entire life for years? For over a decade, the local judge who supervised the probation of recording artist Robert Rihmeek Williams, known professionally as Meek Mill, sanctioned him and sentenced him to more prison for conduct that did not clearly violate any rules, such as traveling to perform or doing wheelies on a dirt bike in an empty street while filming a music video. By speaking out and organizing, Mill has drawn attention to the lack of due process in the parole system. In Chapter 10, I describe how, in a time of political polarization and technological unfairness, we can rebuild our due process foundations. Due process has become divided, as people ask whether everyone really deserves a day in court. We can resist calls for summary punishment and embrace fairness for all. Due process is more than the appearance of fairness – and it is not just an ideal but, rather, the hard day-to-day work of making justice a lived experience.
My goal in this book is to convince you to value – even venerate – due process. It is understandable that people often want to put outcomes first and the process second. There is a natural human tendency to take shortcuts to get the results we want. Human psychology, amplified by social divisions and technology, fosters expectations for instant gratification, rather than valuing slow but fair justice. Yet fair process matters to us all. Common ground on due process matters now more than ever, to mend political polarization, to cool simmering distrust of government, and to safeguard our constitutional rights. A revival of due process is long overdue.
1.
Staff, “Derek Chauvin Trial: BU Community Reacts to the Guilty Verdict,”
BU Today
, April 20, 2021.
2.
Associated Press, “Minnesota Appeals Court Rejects Derek Chauvin’s Request for New Trial in George Floyd Killing,”
CBS News
, April 17, 2023.
3.
U.S. Const. amend. 5, 14.
4.
Malinski v. New York
, 324 U.S. 401, 414 (1945) (Frankfurter, J. concurring).
5.
UDHR art. 10.
6.
ICCPR art. 14.
7.
ECHR art. 6(1).
8.
Pseudonyms are used here rather than the initials used in the civil complaint filed in the case.
9.
Complaint at 28,
Chianne D. v. Weida
, Case 3:23-cv-00985 (M.D.F.L. August 22, 2023).
10.
42 C.F.R. §431.210.
11.
42 U.S.C. §1396a(e)(16).
12.
The above facts were set out in Chianne D.’s declaration, attached to the complaint. Declaration of Chianne D.,
Chianne D. v. Weldra
, Case 3:23-cv-00985 (S.D.F.L., August 19, 2023).
13.
Selena Simmons-Duffin, “Two Families Sue Florida for Being Kicked off Medicaid in ‘Unwinding’ Process,”
NPR
, August 23, 2023.
14.
Jennifer Tolbert and Meghana Ammula, “10 Things to Know About the Unwinding of the Medicaid Continuous Enrollment Provision,”
KFF
, June 9, 2023.
15.
For an excellent piece that does carefully examine the scale of the problem and how vulnerable people and minorities are affected, see Leighton Ku, MaryBeth Musumeci, and Sara Rosenbaum, “Florida’s Medicaid Unwinding Lacks Fundamental Safeguards and Can Harm Population Health,”
Health Affairs
, December 1, 2023.
16.
Mawa Iqbal, “Illinois Will Become the First State to do Away With Cash Bail,”
NPR
, December 28, 2022.
17.
Dean Olsen, “Sweeping Crime Law in the Spotlight,”
Illinois Times
, December 22, 2022; Nigel Roberts, “Illinois Becomes First State in US to End Cash Bail,”
BET
, September 19, 2023.
18.
Damali Ramirez, Taylor Bayly, and Kierstin Foote, “How the Push and Pull of Unions Is Hindering Police Reform around the Country,”
USA Today
, December 18, 2022.
19.
Brandon L. Garrett and Gregory Mitchell, “Error Aversions and Due Process,” 121
Mich. L. Rev.
707 (2023).
Which of the following errors at trial do you believe causes more harm to society?
erroneously convicting an innocent person
failing to convict a guilty person
Or, do you believe these errors to be equally bad?
To sway your answer, a judge might remind you of the importance of the presumption of innocence. Across the world, judges tell juries that a criminal system must take great pains to avoid the conviction of the innocent. As a matter of due process, judges require the highest degree of proof in criminal cases. In the United States, the Supreme Court has held that the Due Process Clause requires proof of guilt beyond a reasonable doubt in a criminal case.
The beyond-a-reasonable-doubt burden of proof reflects an old due process concept. One of its best-known expressions, by the eighteenth-century English jurist Sir William Blackstone, is his statement that it is “better that ten guilty persons escape, than that one innocent suffer.”1 U.S. Supreme Court Justices often cite “Blackstone’s ratio.” Thus, in 1970, Justice John Marshall Harlan II in the Court’s In re Winship ruling that set such a high standard of proof in U.S. criminal trials, explained: “I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”2
You may also worry about guilty people who commit serious crimes going free. While most prominent voices have argued that public safety costs should be given more weight, not everyone shares that view.3 In a clear jibe directed at Blackstone, English jurist and philosopher Jeremy Bentham made light of writers who first said it was better to save “several guilty men, than to condemn a single innocent man,” and others who, “to make the maxim more striking, fixed on the number ten.” Others “made this ten a hundred,” and still others “made it a thousand.” Such “candidates for the prize of humanity” go so far as to say that “nobody ought to be punished, lest an innocent man be punished.” These “sentimental exaggerations,” Bentham says, will “tend to give crime impunity, under the pretext of insuring the safety of innocence.”4 After all, the preference expressed in Blackstone’s ratio would result in ten times more guilty people going free.
If you were sitting as a juror in a criminal trial in the United States, a judge would instruct you that the “defendant is presumed innocent of the charges” and that this presumption “is not overcome unless you are convinced beyond a reasonable doubt that the defendant is guilty as charged.”5 These words express powerful ideas, but in a somewhat abstract way. The judge will tell you that you can only convict a defendant if you are sure, beyond a reasonable doubt. You are not told what level of certainty you must have, however, because judges are not supposed to use percentages or probabilities to express what equates to “beyond a reasonable doubt.” People vary in their interpretations of the level of certainty required by this reasonable doubt instruction, although research suggests that they coalesce at around 90 percent certainty.6 And psychologists have found that people bring different preconceptions and outlooks to the task of serving on a jury, including being either more pro-defense or more pro-prosecution in criminal cases.7 You might understandably not be sure how much evidence you need to convict a person.
Yet the legal system assumes that when jurors in criminal cases are told that they must convict beyond a reasonable doubt, they will follow that rule. We assume that they will basically follow the Blackstone ratio: they will err strongly on the side of avoiding conviction of the innocent. While the presumption of innocence and the burden of proof reflect deeply held values, including concepts of due process and “fundamental fairness,” it is important to understand how people understand those ideas and how they use them. Only then can we be sure that people like jurors, and even judges, will believe in and follow the assumptions of the legal system.
In this chapter I explore groundbreaking research in which scientists have unpacked the sources of our attitudes toward fairness. I then turn to the more basic questions: Why are people divided about due process? How do people balance due process against other values like public safety? I will describe how the research on our attitudes helps to explain people’s quite divided views about how to respond to crime. I also explore the more positive implications that, even in an era of political polarization, and around difficult topics like what sort of due process to provide in criminal cases, we share substantial common ground.
Scholars have long studied where attitudes toward fairness come from and why. Psychologists have given children wheels of fortune to measure how they view procedural fairness. Children were told, after receiving several colorful toy erasers: “We have one left. What should we do? I know! We’ll spin a wheel to decide, and you get to decide which wheel we will spin.” The children had a choice whether to pick a fair wheel, which was equally divided, or an unfair one. Most of them picked the fair wheel, particularly the older 6–8-year-olds. This demonstrates that young children care deeply about fairness, not in courtrooms, but in everyday life.
Even quite young children care about fairness: they will throw a prize away to make sure everyone receives an equal amount.8 Studies have shown that by the age of 3, children care about equal distribution to strangers whom they do not know.9 Older children prefer an equal distribution even if it means they do not receive more than the others.10 In yet another study, where children spun a wheel that decided if they received one, two, or three stickers, three-quarters of those spinning an unfair wheel said they observed it as unfair. The loser (the child who got only one sticker) could either go along or refuse to keep playing, which would lead to a loss for all the players. With the fair wheel, none of the children stopped the game. These children cared about more than winning; they cared about fairness.11
Across cultures, children reject the idea that they should get more than someone else for unfair reasons. We should all be reluctant to play a game that is rigged, even if we happen to benefit. This human concern with the fairness of the process is termed “procedural justice.”12 Even if these procedural justice values are hardwired or ingrained from social experiences that begin at an early age, there is something deeper involved in our attitudes about fairness. Due process reflects more than a set of legal requirements, or procedures that governments adopt, or the more fundamental constitutional and human rights guarantees that stand behind those rules. The commitment to due process also reflects a deep human desire for fairness.
The term “procedural justice” was coined by John Thibaut and Laurens “Larry” Walker in 1975. They designed a groundbreaking set of studies exploring how people view the fairness of what happens in court. I first met Larry Walker at the University of Virginia School of Law, where he was a colleague and mentor of mine, and, having collaborated with psychologists in his work, he encouraged me to think about how the law connects with social science. Early on in his career, Walker had met Thibaut, a social psychologist, and they began to ask questions about the fundamental differences between legal systems in a new way, by focusing on people’s concern with fairness, or procedural justice.
Different legal systems approach courtroom procedure very differently, but Walker and Thibaut thought that people’s procedural justice values might be more universal. In adversarial systems, such as in the United States or the United Kingdom, each side has a lawyer who makes a case to lay jurors, with the judge arbitrating and instructing on the law, but the jury finding the facts and reaching a verdict. In contrast, in inquisitorial systems, such as Japan, France, or Germany, the judge traditionally runs the entire process and makes the final decision. Walker and Thibaut asked how people felt about an inquisitorial trial and compared that with how others felt about an adversarial trial, where each side’s lawyer controls how they tell their own story. They found that people appreciated the opportunity to participate and the fairness of the adversarial trial, even when the outcome did not go their way. People do not just care about outcomes, or “distributive justice,” or who gets what; they also care about being treated with dignity and fairness.13 Ultimately, Walker and Thibaut summarized their work in a book, titled Procedural Justice, which developed how perceptions of fairness in process, which we now call procedural justice, deeply matter to people.14
A large body of work has built on this idea that people care not only about the outcomes for themselves and others, but also about the process, including fair interpersonal treatment. Over the years, psychologist and Yale Law School professor Tom Tyler and others expanded this research beyond the trial settings that Thibaut and Walker studied. Tyler fashioned a classic study, inspired by that work. He asked people whose cases had been dismissed in a Chicago traffic court due to the officer’s failure to show up whether they were satisfied with the outcome. Many were not, because they wanted a hearing and a chance to tell their side of the story and felt that the shoddy process – even one that, for them, resulted in an objectively positive outcome – was unfair.15 People cared more about bring treated with respect, sincerity, and dignity.
Continuing this line of research, Tyler explored whether procedural justice can create more trust between people and government. He surveyed New York City residents and found that people cared not just about the outcomes of policing, but about whether police treated people with dignity and fairness. He and his coauthor Jason Sunshine argued that “the legitimacy of police is linked to public judgments about the fairness of the processes through which the police make decisions and exercise authority.”16 In follow-up surveys, people said they were more likely to comply with the law if they viewed the police as legitimate. Procedural justice, then, may promote mutual trust and respect.
Some people do care more about outcomes – getting the stickers – than the fairness of the game. Walker and Thibaut’s work suggested that people also thought that the U.S.-style adversary procedure would help the disadvantaged in court.17 More recent studies have similarly found that people care more about outcomes than procedural fairness.18 Further, as University of Virginia law professor Fred Schauer points out, people may be willing to obey laws simply because they think they are good and know that the consequences of being caught will be very bad, independent of how the police might behave.19 Indeed, people may also care about accuracy, or whether the government makes errors. There is evidence that people care quite a bit about each of these values, including the context, and the balance between fairness and the outcomes may affect their views on what process should be due. In America, the problem of criminal justice has put that balancing of procedural justice and other values to the test.
“You have the right to remain silent. Anything you say can be used against you in court. You have the right to the presence of an attorney. If you cannot afford an attorney, one will be appointed for you prior to questioning.”
Those warnings, first required by the U.S. Supreme Court in its 1966 ruling in Miranda v. Arizona, one of the best-known cases in criminal law, helped to ignite years of political battles about due process and controlling crime. In the 1960s, the Court, in response to police abuses, particularly involving Black suspects in the South, began to recognize more criminal procedure rights. In cases like its 1961 ruling in Mapp v. Ohio, the Court extended the exclusionary rule to individual states, so that if state or local police conducted an unreasonable search or seizure in violation of the Fourth Amendment, the evidence that they derived from that search or seizure could no longer be admitted at trial.20 Five years later, in Miranda, the Court ruled that warnings such as the right to remain silent must be given to suspects before they could be questioned in custody.21
In response, many argued that rising crime made the Supreme Court’s rulings ill-advised, and the politics of crime fundamentally changed. In the Miranda case itself, Justice Byron White dissented and argued that in “some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.”22 Echoing that concern a year later, Senator Barry Goldwater blamed the ruling for “violence in our streets.” When successfully campaigning for president in 1968, Richard Nixon promised to appoint Supreme Court Justices who would reverse a “soft on crime” approach.23 He argued that the Miranda opinion “had the effect of seriously hamstringing the peace forces in our society and strengthening the criminal forces.”24 He promised that law and order would be the core of his administration, and he proceeded to appoint Chief Justice Warren Burger and three associate justices, all of whom took a more conservative approach to criminal procedure.25 The Court gradually weakened the Miranda