Does Due Process Get in the Way of Justice?

America has an incarceration problem. In most of the civilized world, incarceration rates hover around .1%, or about one person in prison for every thousand that aren’t. In the U.S., it’s just above .7%, or 7 people in prison for every thousand that aren’t. Either the U.S. contains 7 times the criminals, or we just put more people behind bars.

In a provocative New Yorker article on America’s prison problem, Adam Gopnik argued that our focus on due process leads us away from justice.

The arguments, largely lifted from a book by recently-deceased Harvard Law professor William Stuntz, The Collapse of American Criminal Justice (which I just bought), are probably familiar to anyone with an interest in criminal justice.

The trouble with the Bill of Rights, he argues, is that it emphasizes process and procedure rather than principles. The Declaration of the Rights of Man says, Be just! The Bill of Rights says, Be fair! Instead of announcing general principles—no one should be accused of something that wasn’t a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done—it talks procedurally. You can’t search someone without a reason; you can’t accuse him without allowing him to see the evidence; and so on. This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice. You can get off if the cops looked in the wrong car with the wrong warrant when they found your joint, but you have no recourse if owning the joint gets you locked up for life. You may be spared the death penalty if you can show a problem with your appointed defender, but it is much harder if there is merely enormous accumulated evidence that you weren’t guilty in the first place and the jury got it wrong.

In other words, due process is meant to be a means to an end—justice—but due process has become the end itself. The courts are going through the motions of meting out justice without actually doing justice. I’m curious whether this strikes a chord with the prosecutors and defense lawyers out there. Do we over-emphasize process to the detriment of justice?

(photo: Shutterstock)


  1. Avatar Larry Watts says:

    This is a stupid comment and must have been written by a historically ignorant non-lawyer. “Get the picture!” (as Scalia would say), or “Give me a break!” as John Stoessel says. “Due process” is both the means and the end. It is justice in increments and if you don’t have it then you don’t have justice. The commentator is really saying that “justice” undefined except in his heaqd as the right result or the result he desires (a good lynching) is hampered by the niceties of due process. When the concept was officially articulated in 1269 A.D. or C.E., justice was as the King said and the commentator fully understands to be “What the King wants!” Tell your editor to get with it. Cut the crap and stop engaging in Republican pitches.

    • Sam Glover Sam G. says:

      Actually, the quote (if you read the post) comes from a Harvard law professor, William Stuntz, who was described by the New York Times as

      an influential legal scholar known for his counterintuitive insights, who blamed liberal judges, conservative legislators and ambitious prosecutors for what he saw as a criminal justice system that imprisons far too many people

      Moreover, it should be pretty clear from the context that none of the authors of the quotation, the linked article, or this post are trying to get more people lynched. Quite the opposite. We all think there are too many people in jail, for too long, for too minor of crimes. That’s not justice, but it does seem to satisfy due process.

  2. This topic was well-chosen, Sam. Professor Stuntz makes a very good point about the overcommitment to process instead of results. As a criminal defense attorney, I agree completely with what he said. I often see people who get exhaustive process: things are explained to them by the prosecutor (when they’re not represented by an attorney), and then the judge questions them again on the record to make sure they understand what they’re doing, and then they often take plea agreements that are really not very fair. I can assure you that people get better results when they have an attorney defending them. People without attorneys often enter guilty pleas that leave them with very negative consequences without knowing what they’re getting in to, and without knowing they could do better.

    I’m sure someone will cry that everyone has the right to an attorney in the criminal system, so what’s the problem? The truth is that many people do not have an income LOW enough to actually qualify for the public defender (people who own their own homes are also excluded), but cannot find the thousands of dollars necessary to hire a private attorney. If the system were committed to advising a defendant about the real consequences of a plea agreement, not just the actual charge and sentence, the results would be very different. There is too much injustice that occurs in the system under the guise of “fairness of process”. A process that gives a person every chance to respond to the charges against him, but doesn’t actually give him a fighting chance to stand up to the state, is not really fair.

    For Larry’s benefit, Bill Stuntz was a truly great man who was thoughtful, reasonable, and made brilliant contributions to the thinking on how to improve the criminal justice system. He was also one of the most humble and gracious men I have ever met. He was that rare combination who respected law and order and the need to protect society, but cared deeply about justice and the need to treat people as human beings with dignity and value. Thanks for digging into his work, Sam.

  3. It is possible to elevate process over justice. Examples might include the execution of the death penalty after the government refuses to allow DNA testing of evidence that would exonerate the defendant. Yet, there is a place for both in criminal law. An example of this conflict or balance (depending how you wish to view it) is in confessions law. The common law issue of voluntariness of cofessions served the public policy of reliability (justice). The mid-20th Century Escobedo and Miranda cases emphasized procedural protections, primarily meant to deter police misconduct (process), which presumably could lead to unreliable confessions (injustice) in some cases. Is one superior to the other? My answer is no. We should pursue both justice and procedural fairness, wisely, even though at times they will conflict.

  4. I agree, Tom. We shouldn’t reduce the pursuit of due process or fairness. I don’t think Professor Stuntz would say the safeguards we have in place for due process are too excessive, but only that we have focused so much on them that we have neglected the pursuit of actual justice in the results. We need to emphasize and pursue both. The thing is, just telling people to pursue justice won’t actually achieve it; we would need to develop ways to ensure justice in the results is pursued more diligently and carefully, and so we would be back to process again. But it would be procedure that is focused on whether the result is just, not simply on whether the process itself was fair.

    I think part of the problem is that we have settled into a very process-driven system, and the average participant in the system (judge, prosecutor, probation officer, clerk, lawyer, etc.) does not necessarily spend a lot of time thinking about WHY we deal with criminal cases the way we do and why the sentencing options are there. I recently heard a business lecturer say that the way you make sure you stay true to your core values and mission is to create decisionmaking processes that force you back through your core values every time you make a decision. One step forward in the criminal system would be to require all the players to regularly attend programs that focus on how we achieve justice, what justice is, and why we do the work we do. If we encouraged people to think about the values behind the system more often as they did their work, that would be one step toward promoting more justice in the results.

    That may seem a small step, and a cynical person could say that this would not be taken seriously by many participants, but if it made a net improvement in the way only some of the participants acted that would be worth it. Even better, if it prompted a small number of people to get more impassioned for pursuing justice in the way their courtrooms and departments were run, that could have an impact on other people who didn’t really respond to the programs directly.

    • I agree. Another thing we can do is to emphasize common law defense issues – those from the early 20th Century and earlier. Those tend to be oriented towards reliability of evidence, rather than procedural fairness.

      Another example of the modern disregard of justice would be per se DWI laws; even more so with courts ignoring “impairment evidence” in relation to breath and urine “testing.”

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