It’s hard to keep up with the pace of change/disruption in the United States these days, but much of it is the culmination of a longer trend of an attack on due process rights that is clearly set out in a new book by Professor Brandon L. Garrett – Defending Due Process: Why Fairness Matters in a Polarized World. There are some lessons in this book for Canadians as well.
I talked to Professor Garrett about the origins of the book:
… It used to be that procedural fairness to concepts were central to legal education. … But over the years that began to be missing, and I also just saw much more sort of open skepticism of the idea that fairness should matter, that [it is] much more important to get the right outcome.
And at the same time we saw much more frustration in society with the idea that … the courts are slow, their fair treatment can just be gamed by the wealthy and increasing skepticism of the value of having someone neutral or impartial decide important disputes.
Now, all of these problems are occurring in an environment where there’s just more polarization … and where people maybe sometimes understandably, just want the right thing to happen right away. I think there’s also a technological dimension to this. People are used to the idea on lots of different social media platforms that you could cancel someone. You can silence someone. You can sometimes have things happen to speech that you don’t like or conduct that you don’t like right away, and there can be instant gratification. But similarly, there’s also the concern with polarization that people just are much more formally convinced that their side is right and want to see the punishment of the other side, irrespective of fairness.
So all of this just made me increasingly disturbed. These problems jibed with things that I was finding in some of my own research and I was also personally experiencing the challenges of widespread distaste for due process, and some of the engaged work that I was doing like in the bail reform area. It also really impacted the work which is really my life’s work trying to improve the fairness of the criminal justice system. It’s much harder to do that if people don’t think that fairness matters.
My full interview with Professor Garrett will be posted on my newsletter, An Adjudicator’s Toolkit, in the coming week.
The book is aimed at those who are not lawyers and is a good primer on due process in the United States. Due process rights, guaranteed by the U.S. Constitution, are similar to our rights of procedural fairness guaranteed under the Charter. Professor Garrett summarizes those rights:
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.
In the book, he provides many examples of violations of due process rights. He highlights three forces that have combined to accelerate the current threats to due process:
Disengaged judges – judges are placing less value on due process, taking their cue from the U.S. Supreme Court which “has stepped back” from its rulings recognizing the importance of procedural fairness.
Technology – automated processes, including artificial intelligence, has made it possible for government to rapidly affect the due process rights of millions of people and judges may trust automated systems without understanding how they work.
Polarization – the belief of many people that the “other side” deserves to be silent or punished (amplified by social media) can lead to a more general “culture of indifference” to due process.
Professor Garrett also makes the important point about the self-reinforcing threats to due process:
…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.
Part of his research (along with Professor Gregory Mitchell) has involved the surveying of Americans about their views on procedural fairness. The historic defense of due process has been that it is preferable to free a guilty person than to imprison an innocent one. When those surveyed were asked what was more harmful – false convictions or false acquittals – 61 percent stated that the two errors are equally harmful. Professor Garrett notes that although this may be a different view than the historic view of due process, there is a deeper lesson that is quite positive: there is no polarization about these fundamental due process concerns. The findings of the surveys showed that a majority of Republicans, Democrats and Independents rated both errors as equally harmful.
I am not aware of any Canadian surveys on this question but it does suggest that lawyers, tribunals and courts should orient arguments on due process to encompass both risks. An efficient, and fair, process will lead to accountability for the “guilty” and freedom for the “innocent”.
Artificial Intelligence and due process
Defending Due Process covers many substantive areas of law where due process is at risk – many of the examples are particularly American. The chapter that is most relevant to those outside of the United States is the chapter on AI.
Professor Garrett notes that AI is used in ways that impact life, liberty and property without due process. He states that “digital due process needs to have real teeth”. He advocates for the need to regulate these technologies quickly – beginning with the government’s own use of AI systems. His view is that the government should not be allowed to use “black-box AI in high stakes settings”. What is critical from a due process perspective is that any AI system must disclose what factors it relies on in reaching a decision. Essentially, the use of AI in decision-making requires “glass box” AI systems. Professor Garrett is critical of judges who do not look behind the AI system that is being used in the decision-making process to determine whether it is fair and accurate in its conclusions.
Our Supreme Court has not yet opined on AI, but in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 there is a strong suggestion that “black-box” AI systems used in decision-making will not withstand judicial scrutiny. The court set out the hallmarks of a reasonable decision: “justification, transparency and intelligibility”. What stands out in the context of AI is “transparency”. More specifically, the court indicated that a decision-maker should not expect its decision to “be upheld on the basis of internal records that were not available” to the person or entity receiving that decision (paragraph 95).
Procedural fairness, the rule of law and access to justice
Professor Garrett sets out the connection of due process to access to justice – which is fundamental to the rule of law. Access to justice is different from due process because even when a person does have access to legal representation at a tribunal or court, if the process is unfair, they will be harmed. The process will be more unfair, though, for those who face barriers to accessing justice.
He also notes that people will lose trust in government and the courts if they think the system is “stacked” and unfair. When this occurs on a large scale, entire groups of people may feel excluded from society entirely. A lack of access to justice, like due process violations, can contribute to “legal estrangement” or alienation.
Professor Garrett also notes in the book that due process provides an important antidote to distrust within government. He observes:
It is easy to demonize the city officials and judges in Ferguson, Missouri, as craven and corrupt, but they were part of a system in which local governments had to provide services without adequate funding, and where there was no consequence for treating people in biased, unjust ways. Georgetown law professor David Super has argued that many critics of due process rights fail to ask what impact individual rights deprivations have on government administrators. With no means of challenging unfair procedures, administrators may feel unaccountable for abuses, ranging from “thuggish behavior” by prison guards, to awards of government benefits. In any organization, front-line workers can make mistakes and need quality control and accountability. They do not want to feel like they are part of a failed system, or that wrongful acts of abusive co-workers will remain unpunished. Super argues that “enforceable individual rights can meaningfully enhance the efficiency of governmental operations in achieving the optimal balance among their competing values.” Due process helps government officials do their jobs well. In short, we need accountability, and due process prevents government impunity.
This book is a welcome addition to the literature on due process (or procedural fairness) and will, hopefully, ground debate about the need for due process reforms in the United States, as well as in Canada. Given the events in the United States that have transpired after the book’s publication, it is even more important than ever. I will give the last word to the American Bar Association:
There is much that Americans disagree on, but all of us expect our government to follow the rule of law, protect due process and treat individuals in a way that we would treat others in our homes and workplaces. The ABA does not oppose any administration. Instead, we remain steadfast in our support for the rule of law.
We call upon our elected representatives to stand with us and to insist upon adherence to the rule of law and the legal processes and procedures that ensure orderly change. The administration cannot choose which law it will follow or ignore. These are not partisan or political issues. These are rule of law and process issues. We cannot afford to remain silent. We must stand up for the values we hold dear. …