Due process of law

Due process can, and often does, result in injustice

In Twelve Men Good and True, an article I put up on Substack on 12 December 2023, I entered into a discussion of juries and my view that they can be regarded as a nebulous fiction. Interwoven with the aspect of a jury was a discussion of a number of criminal offences such as murder, culpable homicide, culpable omission and felony murder. Briefly, provided the jury adheres to the rules imposed upon it regarding attendance, non-partisanship, confidentiality and such like, it can be deemed that any jury that finds facts in a prosecution paraded before it, does so in accordance with the due process of law, of which they form a part.

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In that article I discussed the 1953 execution of Derek Bentley, a 19-year-old armed robber who was deemed to be guilty of the killing of a police officer, the result of his having been shot by Bentley’s 16-year-old accomplice. The 19-year-old and the 16-year-old being each deemed to form part of a joint enterprise, the younger lad’s guilt was shared by the older man, even though the older man had not pulled the trigger. The jury found both guilty, but recommended clemency. That was a prerogative that lay in the hands of the British Queen, on a recommendation from the Home Secretary. The Home Secretary declined to forward any such recommendation to Her Majesty and one of the grounds for his so declining was that it would constitute an interference in the due process of the law.

What, then, is the due process of law?

First, the words: due, which means “as it should be”—rightful, proper, fitting; process, which means “proceedings”; law, which means the prescript of that which is ordained, decreed, enacted or adopted by parliament as rules governing the jurisdiction within its purview; so that due process of law means the rightful proceedings according to the rules enacted by parliament. As stated in the article referred to above, the concept of a jury stemmed from article 39 of Magna Carta as signed in 1215. However, by the 14th century, that article had become article 29 and was reworked as follows:

“No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.”

For all David Maxwell Fyfe, the Home Secretary referred to, cited due process of law, more accurately his unwillingness to interfere in that, as a reason for having declined a plea for clemency by Derek Bentley, it was no longer a concept of English law qualitate qua by the time of the petition that was made to him. In any event, given it was nonetheless a juridical notion, because the Home Secretary has a legal function in terms of reprieves in cases of injustice, Mr Maxwell Fyfe was mistaken in saying that the absence of his recommendation means he did not interfere in the due process of the law, for, in that function, he is in fact part of the due process of the law. The Home Secretary, in exercising a prerogative of clemency is part and parcel of the due process of the law. Whether he acts or doesn’t act to accord clemency, he does not interfere in the law’s due process; he is the law’s due process.

Whatever due process of law means—and, as you will see, its meaning is open to a great deal of interpretation—there came a point at which the concept withered away in English law whilst the US, whose law was greatly inspired by English law, adopted the concept, not by way of some statute but in its very constitution:

No person shall ... be deprived of life, liberty, or property, without due process of law. (Fifth amendment.)

And, in case you missed that, it’s to be found again in the fourteenth amendment :

...nor shall any State deprive any person of life, liberty, or property, without due process of law.

Now, whilst due process of law therefore means that certain individual rights are protected, that was not really what was intended by Magna Carta. Magna Carta was a document extracted by duress out of King John of England by England’s noblemen. And England’s noblemen had a great interest in ensuring that due process of law would be adhered to in dealings between the Crown and them. But they couldn’t have cared a fig about due process of any law in their own dealings with the ordinary folk who sweated and laboured on their behalf. It would take about 700 years of the commonality plaintively asking, “What about us?” before any real due process of law would be introduced for them. In the meantime, they had to submit to the ignominies of such outrages as the execution of Mary, Queen of Scots, Anne Boleyn, Sir Thomas More, the Cade Riots, Peterloo, the Highland Clearances, the subjugation of Ireland, the colonisation of Africa, the Chartist movement, Elizabeth Fry, Henri Dunant and the Red Cross, the Geneva Convention; all these events, documents and more were attempts to incorporate the notion of due process into the actions of men in their interactions with other men.

Due process is something more than the instructions for assembling flat-pack furniture, but how much more is blearily indistinct. However indistinct the notion was in 1215 (and that’s not at all clear from the words as used), all these failures in due process date from times that by far post-date Runnymede.

The concept of due process that Maxwell Fyfe was so reluctant to interfere with in 1953 is one of which he might have had a clear notion in his own head, but is one that has lacked a clear and steadfastly constant application in any legal system, English, American or otherwise, in any of the centuries that have elapsed since the not overly happy reign of King John. The commonality that the barons of England left to one side in their agreement with the king was the same commonality that has been left to one side in the very name of that due process of law ever since. For, as would be patent from the outset, the due process due to a baron is by far different from the due process that is due to an ordinary commoner.

In practical terms, due process is generally taken to mean that you can’t be sent to prison without first being tried, you must be heard at your trial (if you so wish), laws have to be fair and open, and not retrospective, and have to be duly promulgated. But the words due process also imply a broader concern in terms of how laws are made, how they are worded, who they apply to, what remedies are available for mistakes (appeal courts are in themselves an admission of fallibility) and, more generally, how important civilisation is to our existence as a society.

In fact, the term is such a broad brush that it’s hard to conceive of a trial in which it could be argued that due process was not adhered to, whilst it’s equally as hard to see where due process is consistently applied with utter equanimity. If we look at the case of Sadik Baxter, what was it that was due about the process of showing the jury the dismembered bodies of the two cyclists mowed down by his accomplice? They were dead, and Baxter was charged with their felony murder, which is automatically a first-degree murder charge. If the prosecution could prove the joint enterprise and the mowing-down of the cyclists by Oakley, Baxter could not possibly have been charged with a reduced offence of manslaughter: by statute, it had to be murder in the first degree, and so it’s not as if the photos persuaded the jury to not find guilt of the lesser charge.

What the jury needed to consider was whether Baxter could have been guilty of felony murder whilst clasped in handcuffs. And what the scene of carnage looked like had absolutely no bearing on whether that was or was not so. The grisly photographs shown to the jury served to secure a finding of guilt for which the mere legal fact that he had been involved in a joint enterprise with O’Brian Oakley would technically have been sufficient to establish, barring any mitigation Baxter could adduce. Did the prosecution fear that the jury might not believe that Baxter had committed the theft he was involved in with Oakley if they had not viewed the aftermath of Oakley’s collision with the cyclists? The connection is crass and irrelevant, and the prosecution knew it, and the prosecution also knew that the jury was more likely to convict if they saw the photos. And that all was due process?

Breaches of due process of law happen daily, and have happened daily since 1215, and no reminiscence of halcyon days of due process will ever make up for the rank injustice that has repeatedly been paraded before the general public as representing due process. In short, a process ceases to be due at the moment at which the two tenets of democracy start to be eroded: that all are equal before the law, and all are free within the law’s bounds. And they start to be eroded from the very inception of a democracy, because that is democracy’s fate: still-birth.

The objections that one could raise against the manners of proceeding that are in contravention of due process of law invariably fall foul of the counter-objection that the processes against which an objection is raised are entirely within the prescript of the law, and are therefore, by definition, due process of law. Effectively due process of law is nothing more and nothing less than a restatement of we make the rules, we break the rules when we feel like it, and anything we do is according to the rules, whether you like it or not. We rail in the west at Brobdingnagian penalties handed down by courts of law in Iran, or in Afghanistan, the Russian Federation or … for that matter, the United States of America; but few, if any, of these jurisdictions’ court orders are in contravention of the principle of due process, because what is due, like a train, is dependent on what you expect, in terms of the train schedule. How right Nelson was to say that England expects that every man will do his duty: duty is what is due, and when something’s due, you can expect it. Twelve lifts up a mizzen mast to say a tautology.

The objections against a breach of due process are therefore dismissed as unfounded, exaggerated, outlandish and fantastical. The counter-objections are themselves wide-sweeping and tend to rally behind the notion that anything that is passed as law by a duly appointed parliament (I nearly said elected) must therefore be lawful. That is certainly true for any jurisdiction that defines lawfulness in such terms, and that is the nub of the issue: he who must adhere to due process of law is he who defines what due process even is. Even when it’s ensconced in a constitution.

If now I could embark upon a litany, a catalogue, an enumeration of all the due processes of law that have been breached since 1215, long though such a list might be, it would never satisfactorily, substantively answer the question of what is due process of law.

But we can perhaps dwell and look upon a number of different examples from a number of stages in the law: (i) the making of the law; (ii) the administration of the law; and (iii) the law’s overall application and rationale in the criminal sphere.

(i) THE MAKING OF THE LAW

The law is made by lawmakers, and, in the past, that was a king. Even now, in the UK, no law can be law unless it bears the superscription of the king. The means by which abortion was decriminalised in Belgium, to which the king had a conscientious objection, was barely within what one might describe as due process, but whether it preserved the monarchy and/or the king’s conscience is a matter for the king’s people and him.

However, in Belgium, the UK and, indeed, everywhere in this modern age, it is hard to see the lawmaking process at work without being acutely aware of the lobby industry. The world is replete with anti-corruption and anti-bribery legislation, sleaze scandals and cash for questions, for access and, frankly, for anything that can be sold and that itself will make fortunes. But little or no action is taken to rein in the activities of lobbyists, who have an incredible amount of leverage when it comes to enactment of the laws that govern their clients, their clients’ competitors, their clients’ enemies, and all of the rest of us.

Here’s just one example from the website of VRT NWS, talking about why the US gives such munificent support to the state of Israel:

The largest and most influential lobby group is AIPAC (American Israel Political Action Committee). It is an organisation that donates a lot of money to politicians, as long as they are pro-Israel. AIPAC can make or break politicians, and does not shirk from making that clear. Anyone who rubs them up the wrong way will be left in no doubt that they’ve done so.¹

If AIPAC pumps large amounts of money into the hands of politicians as a means of guiding policy decisions within parliament, such that the sums in question can make or break those politicians, does that mean that those lawmakers adhere more to the manifesto laid down by pro-Israel sentiments within AIPAC than to the manifesto that their party has promulgated to the voters across America who have voted for that party? And, in the event that there is a discrepancy between what the party said it would do in its election manifesto and what it then does in response to its not wanting be broken, but rather made, by a particular lobby group, does it then err to the side that voted for its manifesto, or does it err to the side of a lobby group that offers make or break sums of money? And where, in that, is the due process of law?

(ii) THE ADMINISTRATION OF THE LAW

The laws of Monopoly®, the property trading game, include a rule that no player may remind any other player of rent that is due to him, not even if the reminder is given by him who owes the rent. And the only time that this rule really works in practice is when there are two players. It can be made to work with three players playing, but they need to have gaffer tape stuck over their mouths, and that’s not quite in the spirit of social intercourse around the card table.

It’s an extraordinary rule, aside from being hard to enforce. For there is no prescribed penalty for issuing such a reminder. Most wouldn’t analyse it like this, but Monopoly® is a game in which there is a prohibition against whistleblowing, a rule that encourages a conspiracy of silence against those who are inattentive to what the market owes them in terms of liabilities. How very realistic Monopoly® can actually be.

There was a recent item in the faits divers of our local news, saying that a petrol station had suddenly had a rush of custom and queues out onto the road because, due to a technical error, folk could fill their tanks to a value of 50 euros and be charged only five euros. Now, I don’t know how the garage came to learn of its mistake: perhaps a routine check, or perhaps someone rang them up and told them, or perhaps a lucky customer put it on Facebook, and that would generally sound the death knell on cheap petrol. Anyhow, by the time it was reported in the newspaper, the mistake had been rectified. Rats.

If there was a petrol station on the Monopoly® board, of course, it would be unlawful according to the rules of that game to alert the garage owner to the fact he was not charging the full amount that he was entitled to. But, in the real world, bucking the system is what Joe Soap is always looking to do and, even if he succeeds, the system will often want to get its retribution, with demands to cough up, or else.

But what if the boot were on the other foot? Under my new rules of Monopoly®, let’s suppose an owner of, say, Old Kent Road can claim rent from any player he chooses. Nobody’s token need even have landed on the property. The player against whom the £2 is claimed may, under this rule, deny liability for the rent. But the property owner can claim it nonetheless. The liable player may appeal to the other players for their judgment on whether or not he owes the £2. If the other players decide that the player claimed against does in fact owe the £2, he must pay it. Whether he has landed on Old Kent Road or not. In a final appeal, the liable player may appeal to the banker. But the banker may simply refuse to hear that final appeal. In that case, the sum of £2 of rent is definitively due. Play proceeds to the next player.

Monopoly® is a board game whose rules often get chopped and changed to add a hint of spice to the play: no buying on the first round, fines get collected on Free Parking, no collection of rent whilst in Jail, and so forth. But, though I used to be an avid player of Monopoly® in younger days, the rule I have just described was never applied—I just made it up now. I think anyone who’s ever played Monopoly® would agree it sounds daft, unworkable and plain unjust. Even more unjust than keeping stumm about another player’s rent entitlements or cheating the local filling station out of a tank of free petrol. But this is a rule that in fact does apply in real life. And one of the players against whom a claim has been made for the rent on Old Kent Road is Mr Robert Roberson III. You can read more about Mr Roberson in my articles set out at the foot of this essay.

Mr Roberson has appealed his conviction, 21 years ago, for which he was sentenced to death, for a crime that not only was likely not committed by him but, his counsel cogently argues, was indeed not committed by anyone: the rent is being claimed, without anybody having landed on Old Kent Road. The fellow players in Roberson’s drama are the judicial system of the state of Texas, and they have consistently told Mr Roberson to cough up the £2. The banker in our analogy is played in Mr Roberson’s case by the Supreme Court of the United States and, just as under the bizarre rule in our amended Monopoly® game, that court has refused to consider the debtor’s case.

That is how aleatory the due process of law can be: strange though my revised rule of Monopoly® would be if incorporated into the rules of that game, it is coherent enough to be applied, even if its characteristic feature resides in exercise of the whims of the players. In the end, if it were incorporated as a rule, it would be the rule. And, as the rule, due process in the game of Monopoly® would demand that it be applied exactly as it stands in the rule book. Unless, that is, the rule book had by that point been torn up and chucked in the bin.

For, surely, a due process cannot be one that is dependent on a whim? Well, how do you tell whether a court has decided according to due process and when it decides according to what it feels like? A process is a set of procedures that must be gone through. In many cases, even if due process is designed to reach a reasoned conclusion on something, it can end up being tantamount to going through the motions.

Take Caledonian Railway Rule 55, which was not fully observed on 22 May 1915 at Quintinshill signal box. Rule 55 provided that the guard of a train left standing on a main line for more than five minutes must report to the signal cabin to ensure his train is duly protected, ensuring that a collar is placed over the relevant signal levers; he must then sign off on the signal box register that he has done this. On the fateful day in 1915, the guard signed off without verifying any of the security procedures and a triple-train crash ensued, in which 247 people died. He went through the motions.

For those who stand open-mouthed watching due process at work, the only thought that they are constructively left with as a panacea to their astonishment is, “When do we tear up the rule book?” To which the answer is often, “Never, as long as you’re in the group that the rule book is skewed in favour of.” And, in Monopoly®, as in real life, that’s the property owners.

(iii) THE RATIONALE BEHIND THE LAW

Due process is a principle that attracts. When it is cited in speeches, in court addresses, in judgments and in newspaper articles, in speeches in parliament and in the memoires of former Home Secretaries, it has a resonance that almost invites the assembled listeners to turn reverently toward one another and mutually nod in sage assent: this is the stuff of justice. The law may be an ass, but, as long as that ass’s due process is followed, it is a wonderful ass.

That is in the end due process’s great failing. As with the Monopoly® example above, you can make any law as crass and illogical and discriminatory and divisive as you want. Once it has a process attached to it, that becomes its due process. There is as good as nothing that stands over due process to ensure that the process is in fact due and proper.

Some months ago, I wrote a letter of support to friends of mine who are applying for a particular residential status, for which they must go through a due process. The letter can be read here, and dwells on the idiocy of instituting a process to determine the mental intentions of two parties, whose veracity is held up against something as flimsy as whose sweaters are stored in whose drawers and how many steps there are from the second to the third floor of their house. If they were to marry, they’d simply require to say I do. But, because they want to cohabit, a declaration of I do is deemed insufficient. The ignominy is that the refusal of their application has been issued according to due process.

When a criminal is convicted of a crime, there follows a process called sentencing. The conviction rates in the US, which are a multiple factor today of what they were in the 1970s, notoriously involve far more poor individuals than rich, and more persons of colour or Hispanics than of Caucasian race. And many convicts are sentenced to a term of imprisonment that far outstrips any human life expectancy.

Sentencing policy has an effect of destroying families and a correctional system that vaunts anything like combating recidivism and tightening the bonds that ensure a peaceable society would be expected to make greater play of doing what it can to uphold family ties in order to reduce rates of offending. But parental/filial alienation, hopelessness and despondency, with little or no prospect of release, especially under a parole system that seems, in the US, to have atrophied, are sentiments rife within correctional systems, certainly the US’s.

Father south, in countries like Guatemala and El Salvador, the correctional system is catastrophic, with quite clear signs that the prisons there are not only hell holes, but also get regularly torched with hell’s fire as a quick resolution to overcrowding issues. Minimum sentencing takes a large part of the judicial discretion, which can so usefully be applied in the field, out of the hands of the judge, whose title comes from their proximity to the accused, in order that they can properly judge. Instead, in terms of sentencing, judgment is increasingly exercised by the legislature, not the judiciary. Under the separation of powers, that is no due process.

America has set itself up as a strong-arm opponent of criminality, and it is understandable that it has taken that stance, given the manyfold problems that its society must battle with. The US has laws that, some say, allow proliferation of firearms to the benefit of gun manufacturers, and then finds itself having to combat gun crime by sending culprits to prison for centuries. Why not simply rein in the possibilities of acquiring a gun? I’m not saying it would work hundred per cent, but wouldn’t they at least try it?

Many of the solutions that the US has reached in a bid to solve the problems that plague its society are at best of no effect and at worst only exacerbate the issues.

• Privatising prisons to make money for stockholders of corporations is contrary to the mantra of a debt to society, which runs right through the correctional system. A part of that society is then privileged to profit from the crimes of others, whereas profiting from crime is supposed to be proscribed under the penal laws. Well, profiting from crime is profiting, even if it’s not your crime. With lobbying so ubiquitous, is there not a grave danger that prison corporations will encourage the kinds of policies that increase rates of incarceration? Is that due process?

• The retribution that sentencing policy seems to want to exact from convicts is unworthy of a country that aspires to be esteemed as civilised: prosecutors raise cases founding on how unreasonable the accused has allegedly been in his or her behaviour; and yet, when it comes to punishment, the prosecutor seeks naught but vengeance, as if they themselves had a beneficial interest in maximising punishments … or as if they were the victim, or, worse even, some criminal gang (in Amsterdam, one decapitated its enemy and dumped the head in front of the the gang’s front door). The State is supposed to be the even-minded mediator between criminal and victim. Instead, even when a victim himself pleads for clemency, the State seeks only vengeance, and that makes a mockery of justice for victims, for if a victim petitions for clemency, is justice not best served if their wish is granted?

• The private commissaries at prisons, instead of providing necessities for life at cost, seek to add unreasonable margins. That is no due process: that a convict paying his debt to society should be a source of profit to the corporation contracted to oversee his incarceration is nothing less than slavery, especially where the convict is incarcerated as a result of polices in favour of which the corporation has militated. Ultimately, the prisoner not only pays a debt for their crime, but also amasses a debt with which they are saddled when released into a society that may have had its debt repaid, but will never forgive that debt when it comes to the ex-con seeking employment: the great penitential paradox of paid in full and still resting due and owing.

• In terms of the supposed freedoms vaunted by US politicians and US society, it can be hard to discern in the detail how the lot of Blacks improved in the hundred years between Civil War and Civil Rights. In large part, Jim Crow saw to that. Marx and Engels might have called on the world’s workers to lose their chains in the Communist Manifesto, but the chains that bind slaves are never thrown off just because they cease to be called slaves.

  Two million Americans today are incarcerated, and the reduction in criminality as a result of these huge numbers … is it at all palpable? What the modern prison system in many countries does is simply replace the shackles of slavery with the shackles and jumpsuits of a penitentiary. Blacks might have suspected that the price to be paid for refusing to surrender a seat on a bus would be thousands of their kinfolk installed on seats in buses at gunpoint, as they’re transported to their new homes and workplaces, behind the steel bars of a slammer: due process of law isn’t a jurisprudential doctrine; it’s a multi-billion dollar industry.

Linked here is an incisive film by journalist Chris Hedges in which he discusses US sentencing policy with former Assistant District Attorney Liz Komar, who delve more deeply into these concerns.

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I wrote to a friend to ask whether he considered it judicious of me to extend a hand of friendship to Robert Roberson, mentioned above. He replied in a constructive and helpful manner, in the course of which he asked me a pointed question, to which I, as yet, have no answer. It was this: “What would you write to him about though? His predicament? Or horseback riding, camping, hiking, weightlifting etc.?”

Why would anyone want to reach out to another human being who, they believed, had suffered an injustice? What concern is it of mine? What has it got to do with me? What do I care about Robert Roberson III?

Well, let me turn the questions around: would you want to reach out to another human being who, you believed, had suffered an injustice? Would that be of concern to you? Would it have anything to do with you, with the society in which you live, with the mores that govern the way you live? Would you care about anyone?

If you were Robert Roberson III and convinced of your innocence and yet were facing execution on death row, would you welcome others reaching out to you? Would you find that fulfilling or would you find it a bother? Mr Roberson has a profile in which he seeks contact with pen friends. Pen friends can be a source of insight, company, news, camaraderie, and intrusion. I wouldn’t want to intrude, but I must in order to find out if I’m intruding. Would you?

I ask these questions not to challenge the strength of your backbone. It is as strong as it is and one simply cannot fight every battle. But due process has become a defence, and a putative principle, and a way of doing that increasingly entails going through motions, and, if going through motions is good for you and for your path through the world, then I don’t seek to deflect you from that path.

However, I have long since been of the conviction that the mark of civilisation lies not in our ingenuity and resourcefulness in developing patentable inventions and extracting the riches of the earth, but in the manner in which we impose punishment on those who transgress the natural laws we convene should govern us.

An anthropologist—perhaps really, perhaps apocryphally—posited that the birth of civilisation occurred when the first human was cured of a broken femur. The time needed to bind the leg and allow the bone to re-knit showed that somebody cared, and that was, for her, the inception of civilisation. It’s an interesting approach. But how, I would ask her, would she characterise the moment in human development when we, instead of healing another’s broken femur, started to break them—deliberately?

If our correctional systems are marked by characteristics akin to retribution, revenge, offhandedness and profiteering, then I don’t think that that is a civilisation of which I can proudly declare I am a part. And, if it is outwith my powers to change these trends within our, within any criminal law, then it is certainly not—not yet—outwith my power to decry these trends within the criminal law, and to express my sorrow at my society’s—not yours and not theirs, but my society’s—failure to embrace standards of civilisation that are right and proper; to see due process, not as a smokescreen behind which to conceal the worst excesses of corruption and selfishness, but as a guiding light, as a causeway, like Thomas More’s description of the law itself, adherence to which will ensure a man’s safety, instead of being the excuse to twist due process according to the rule-maker’s malleable whim.

If I cannot think of what to say to Mr Roberson, I will at least tell him that I care. Not because he yearns to hear that, I suppose; not because I yearn to say it, not especially. But because, if I don’t, what he will hear from me is nothing. If he believes he is innocent, and I believe he is innocent, tell me: why wouldn’t I tell him that I care? The nothing of his prison cell as he awaits execution translates to a holler through the bars on his window: “I don’t care!”

1. “De grootste en invloedrijkste lobbygroep is AIPAC (American Israel Political Action Committee). Het is een organisatie die veel geld doneert aan politici, zolang ze pro-Israël zijn. De AIPAC kan politici maken of kraken, en aarzelt niet om dat ook duidelijk te maken. Wie tegen hun kar rijdt, zal het geweten hebben.” https://www.vrt.be/vrtnws/nl/2023/12/04/vanwaar-komt-die-onvoorwaardelijke-steun-van-de-vs-aan-israel/.