Due Process

In a completely unsurprising 5:4 "bad facts make bad law" case, the Supreme Court denied a defendant the right to obtain DNA evidence from the state that might disprove his involvement in a crime.

Mr. Osborne is not a sympathetic character. He was released after serving 14 years and after telling a parole board he was guilty of the rape. Not long after his release, he was charged with kidnapping, armed robbery and burglary for a home invasion in which he allegedly duct-taped and pistol-whipped four people.

The fact that he confessed and expressed remorse in order to obtain parole is anything but surprising - had he denied responsibility and insisted upon his innocence, he very likely would have been denied parole. But the rest of it? The justices can protest all they want about their goal being to uphold the law, but it's anything but unusual for a nasty set of facts to presage a narrowing of defendants' rights. People like Osborne don't inspire a lot of public sympathy, and very often inspire a response to the effect of, "Even if he didn't do that crime, he still deserves to be in prison."

Blogger commentary tends to lean toward viewing this as a manifestation of "tough on crime" conservatism. I see it a bit differently - as part of the tension between those who believe in "substantive due process" and those who believe that there's no such thing. In simple terms, procedural due process asks, "Did the court follow the rules"? If all the i's were dotted and t's crossed along the way, then the defendant's procedural due process rights were respected and the conviction can be deemed sound. Substantive due process asks, "Was the correct result achieved?" At the extreme end, this can mean ignoring all of the procedural issues and looking only at the outcome on a case-by-case basis. And some, like Justice Scalia, are skeptical of the notion that there's any constitutional right to substantive due process:

There is no text in the Constitution that you could reinterpret to create a right to abortion, for example. So you need something else. The something else is called the doctrine of "Substantive Due Process." Only lawyers can walk around talking about substantive process, in as much as it's a contradiction in terms. If you referred to substantive process or procedural substance at a cocktail party, people would look at you funny. But, lawyers talk this way all the time.

What substantive due process is is quite simple - the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It's a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.

Now, what liberties are they? The Court will tell you. Be patient. When the doctrine of substantive due process was initially announced, it was limited in this way, the Court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people.

Then we come to step three. Step three: that limitation is eliminated. Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don't think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people. It is up to the Court to say what is covered by substantive due process.

There's another way to look at this "division". You could create a system of courts that had clear, easy-to-follow rules that lead inexorably to conviction. Even acknowledging his acceptance that the innocent will sometimes be convicted and imprisoned, I doubt that even Scalia would regard such a system as satisfying the constitution's requirement of granting due process. So it's not simply about procedure, but whether the procedures are likely to lead to a just outcome. At the furthest end, you could argue that the fiercest advocates of substantive due process aren't so much arguing for courts to ignore procedural rules as they are arguing that procedure should not prevent claims of innocence, or block a court from reviewing evidence of actual innocence.

If we approach this as originalists, if Scalia were to ask the framers of the Constitution if they were comfortable with a sovereign who was in possession of evidence that would clearly and unambiguously establish a defendant's factual guilt or innocence, but would not let the defendant access that evidence, do you really think they would respond, "No, we believe the sovereign should be able to withhold the evidence"? If so, but you don't want that outcome, or if you spurn the notion that we should even try to discern what the framers of the Constitution intended as opposed to what they put into writing, we can instead approach the issue as textualists, and decide that "due process" means that the court follows procedures sufficient to satisfy Scalia, even though innocent people will be convicted, but that we should ignore the namby-pamby Justices who would argue that nobody should be incarcerated for life or executed because the state won't let them access evidence that might establish their innocence of the crimes for which they were convicted? How is Scalia's position better supported by the text than the position of those who say, "When evidence is available that could quickly and easily establish guilt or innocence, it should be made available for testing"?

Scalia's not drawing a line based upon the text of the Constitution - it's based upon his personal political beliefs and his personal views of judicial economy and expediency. That's not to say that those on the other side of the issue are any better supported by the text of the Constitution; but it's a fair response that some of the language of the constitution was deliberately left broad or vague - and it's more than fair to point out that the idea that you can always infer objective meaning from text (let alone a text that is centuries old and includes broad, vague, and general provisions) is absurd. Scalia's correct to argue that the Constitution should not be subject to interpretation that rises to the level of de facto amendment, but some of the language has to be applied based upon factual contexts unknown to and unknowable by those who wrote the Constitution. But let's be honest - the biggest difference between Scalia and those he criticizes is that he's more consistent in his application of his favored rules of interpretation - but in my view that's more by happenstance than by either the superiority of textualism to other forms of interpretation or Scalia's actual desire to adhere to a single approach to interpretation. Scalia rapidly departs from textualism (as in the case of sovereign immunity) when it would lead to an outcome inconsistent with his personal philosophy of the Constitution.

No Justice on the Supreme Court would argue that procedure is irrelevant, and all that matters is getting the correct outcome. They're all going to recognize boundaries where judicial economy calls for finality, even if additional proceedings might eventually lead to a different outcome. But some aren't as comfortable as Scalia with deference to state power, and to a state's decision that DNA evidence should not be tested to establish guilt or innocence, even though the techniques available for testing at the time of the original trial were weak or non-existent. A fair question for Scalia: What's the state's interest in denying DNA testing under these circumstances? Were he less sympathetic to state power, Scalia would direct his trademark caustic questions at a lawyer who argued that it would be unduly burdensome for the state to be mandated to permit DNA testing at the defendant's expense in all cases where such evidence existed and had not been adequately tested.

Were this a "cold case", the state would not hesitate to conduct DNA testing to try to match old evidence to a DNA database of known sex offenders. This is different because, rightly or wrongly, somebody has been convicted? So it's more important to the state to have "finality" than it is to assure itself that, in the event that the defendant is telling the truth, a dangerous rapist is off the streets? What if the state's concern is actually that it will look bad - incompetent, unjust, corrupt - when DNA evidence proves a wrongful conviction and somebody takes a look at the processes by which the wrong man ended in in prison? Is it that we are to assume that the state's motives are pure - and if so, where can I find that presumption in the text of the Constitution? If it's not in the text then, once again, what makes Scalia and the other textualists any better than those they criticize?