By Brandon L. Garrett

Due process issues are pervasive in society and in the most high-profile constitutional cases. Due process, or fair trial rights, safeguarded by the Fifth and Fourteenth Amendments of the U.S. Constitution 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 rampant examples of violations.

For example, in October, the U.S. Supreme Court heard arguments in the case of Richard Glossip, who now faces execution in Oklahoma. Glossip has already had nine execution dates set and eaten three “last meals” on death row. Yet, the Attorney General of the state actually opposes carrying out this execution. Why?

An independent investigation uncovered evidence that the star witness at trial, Justin Sneed, had been receiving psychiatric care. The state had not shared this with the defense at trial. Nor did the state share notes that Sneed wrote, including one stating: “Do I have the choice of recanting at any time during my life?” In another note, Sneed called his testimony “a mistake.”

It violates the due process rights of a defendant to suppress evidence of innocence that could have affected the outcome at trial. The Supreme Court, in its 1964 case of Brady v. Maryland, held that due process requires, for a trial to be fair, that all material evidence of innocence be shared with the defense. In Glossip’s case, due process poses a life and death question.

Due process issues are also important in far less high stakes settings, but ones that affect very large numbers of people. This past Term, the U.S. Supreme Court ruled in the case of two people who had their cars taken by the police, under a practice called civil forfeiture. Civil forfeiture is used in hundreds of thousands of cases a year.

In Alabama, Halima Culley’s son was driving her car, was pulled over, charged with minor drug violations, but in response, the government then seized her car. Culley herself had done nothing wrong, but prosecutors filed a claim in a civil court to acquire her car, arguing that it was implicated in her son’s criminal conduct. It took her almost two years to finally get that case dismissed—a long time to be left without one’s vehicle.

Culley argued that due process should entitle people like her to a fair, prompt hearing, before the property was taken by the government. It should not take two years to regain one’s property. In Culley’s case, the Justices concluded that people like Culley had no due process right to such a preliminary hearing, pending the longer process to consider the forfeiture claim. The Justices emphasized “historical practice,” like they have in so many opinions in recent years. But modern civil forfeiture practices are totally different from anything historically used, given how people who are not even accused of a crime can have their property taken. Five of the Justices raised real fairness concerns about such forfeiture practices.  

These unfair practices are a global problem, as well. For example, new technology has created due process challenges across the world. While Culley had to wait two years for a hearing, at least there was a chance to present her case in person, eventually. In many countries, artificial intelligence (AI) systems are already being used in courts, whether in risk assessments used to predict outcomes, or to generate evidence, like with facial recognition. If these systems are a “black box” and not interpretable, then people affected, lawyers, and judges have no way to understand what they did or correct errors. Judges around the world are beginning to confront due process or fair trial claims that using these systems violates rights. And yet they are still being aggressively marketed and deployed.

It is not an accident that the concept of due process is central to many different important problems and debates. It is also not surprising that the courts provide such poor protections. 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. Our justice systems are particularly concerned with protecting people from unfair treatment by the government. And yet, government officials do not take much care to safeguard us from unfairness.

Major due process failures like this do not just happen accidentally. As Adam Gershowitz, Jennifer Teitcher and I have recently documented, Brady claims like in Glossip’s case, are litigated across the country and yet serious claims rarely result in relief.  We do not have a good system for remedying severe prosecutorial misconduct that results in unfair trials. Nor do we have good systems to prevent egregious errors in civil forfeiture, bail hearings, and many other types of processes that affect people’s rights. Judges have allowed roll-out of black box AI systems.

Why is this? Many of the people affected 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. Our courts have stepped away from providing remedies for due process failures, large and small. Judges have taken a hands-off approach, leaving people at the mercy of unfair systems. This reflects a deeper problem: far too many of us are complacent about threats to due process.

My goal in this new book is to convince you to appreciate the centrality of due process to our lives. It is understandable that we often want to put outcomes first and the process second. 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.

Brandon L. Garrett is the L. Neil Williams, Jr. Professor of Law at Duke University.