due process

The Fallacy of Due Process

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Alixis Russell

“There are victories of the soul & spirit. Sometimes even if you lose, you win.” Elie Wiesel

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I have a long held belief that “due process” is not all that it’s cracked up to be – nowhere near it, in fact. This may be ironic seeing as how I am in law school and am very passionate about becoming an actor in our justice system, but I have no qualms with admitting that it fails in so many ways. I want to focus on due process for now, although other issues within our system such as mass incarceration, bail, recidivism, and many others deserve a lot of attention from us all. The reason I am zooming in on due process right now is because I am exhausted from hearing about how people like Harvey Weinstein, Al Franken, Matt Lauer, Roy Moore, etc. all need their “due process” and their “day in court” before we can pass judgement or condemnation on them.

I find this argument, especially when I hear it from my “good liberal” friends, to be extremely disturbing, and mostly, disingenuous. Finally, a conversation is being had and the landscape is shifting in our society from one that silences and shames victims to one that is listening to them a little bit better thanks to the courageous victims who unapologetically speak out against their abusers. This shift is more than imperative in making our society a safer one for the sexual assault or harassment victims in our country. But yet so many people are insistent upon taking the spotlight away from the victims and putting it right back on the accused. This puts exceptions on our capacity to believe victims and conditions on our willingness to support them.

Let’s first discuss what due process is. It includes but is not limited to the following: the right to a fair and public trial conducted in a competent manner, the right to be present at the trial, the right to an impartial jury, the right to be heard in one’s own defense, that laws must be written so that a reasonable person can understand what is criminal behavior, that taxes may only be taken for public purposes, that property may be taken by the government only for public purposes, and that owners of taken property must be fairly compensated. There is indeed a lot there and there are more shortcomings within the US’s due process than I could ever cover. I will be focusing on trials and how defendants are often denied their due process, a Constitutionally guaranteed right, during them.

Let’s start for this article with one of the cornerstones of the trial process: juries. Everyone has the right to an impartial jury of their peers. From my view, no human can truly be impartial, and it turns out other people hold that view as well. And I’m not even talking about explicit racism or other forms of discrimination that run rampant in the US and undoubtedly sneak into the courtroom. I’m talking about something far more common – implicit bias. Implicit biases are in some ways more sinister than explicit discrimination because they operate on the peripherals of our consciousness. They are conditioned into us so deeply and thoroughly that we don’t even know they are there most of the time. In fact, most of us would probably find our implicit biases completely repugnant if we took the time to actually recognize them. (If you’d like learn more about an interesting project by Harvard and other schools that helps people learn about their own implicit biases, check out Project Implicit here).

So, since implicit biases are so ingrained into our psyches and so hard to break, it really isn’t that surprising that jurors’ biases come into play in voir dire (jury selection) and in deliberations. Think about it. Voir dire is where judges and lawyer get to ask questions to a large pool of potential jurors in hopes of striking the bad ones. But the truth is, the judge in many cases just hasn’t had enough time to look over the record to figure out what types of biases they may need to be on the look out for. And the lawyers who are certainly more knowledgeable about the case simply don’t have enough time to get to know the potential jurors. They don’t have time to figure out what makes each of them tick, how they were raised, how they voted in 2016, etc. Many potential jurors do answer the questions asked of them honestly, which is great, but many also get away with staying silent and flying under the radar. Lawyers may very well use up all of their challenges and peremptory strikes and get left with some jurors whom they know nothing about simply because those individuals didn’t answer the questions asked of them or answered them in a less problematic manner than some of their peers. Less problematic does not equal impartial.

Then let’s say we have a pool of jurors and they move into the trial. Assuming they aren’t tainted by news coverage or gossip about the trial and stick purely to the evidence and testimony presented at trial, they then head into deliberations. As we saw not long ago in the case of Miguel Angel Peña Rodriguez, jurors often bring their implicit or even explicit biases into the jury room. (I suggest listening to the podcast Deliberations to get an insightful look into what these deliberations may look like in a criminal trial.) The case may be thrown out at this point which is a veritable waste of time and resources, or it may not and a defendant is sentenced for a conviction that arose, at least in part, from those biases. Remember, implicit biases are hard to recognize let alone control. (Sidebar: look up the jury instructions from your favorite trial in history. If implicit bias didn’t mess up those jurors, those less than easy to understand jury instructions likely did.)

At the end of the day, trials are put on by mere mortals. Not to be cheeky, but seriously we’re all humans here. The judges, the lawyers, the law enforcement officers, the jurors, and even the experts that come to testify. This is one of the many reasons that I am vehemently anti-death penalty, because humans make mistakes. People have bad days. And everyone has implicit bias. So I am extremely uncomfortable with the notion that anyone can have a completely fair and impartial jury because of that and the reasons I’ve discussed. But make that defendant someone who is black, or queer, or trans, or Muslim, and the odds just get stacked even more against them. Due process was written into our Constitution at a time when people were comfortable and even happy with the fact that some people were considered less than human.

But now we are in 2018 and still relying on the concept of due process even though we have progressed not only socially but also psychologically and are aware of all the ways human beings suck at understanding other human experiences. Education and conversation need to happen to expand our collective consciousness and cut down on implicit bias. Criminal justice reform needs to happen as well, and this includes not only getting into our overflowing prisons, but into our fallible courtrooms as well.

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