Crime and Punishment in American History - Lawrence M. Friedman [36]
Evolution of Due Process
In criminal trials, some one man or woman stands in the dock, facing the raw and awesome power of the state. A democratic system acknowledges this fact, and is committed to some kind of balance. “Due process” is a basic concept of American law. It has many meanings. One of them, however, relates strongly to criminal justice. The scales must not tilt too much toward government. Arrests must be fair; trials must be fair; punishments must be fair. These are ideals (reality is another matter). The opposite of a democratic society is a police state. This is a state where the other side, the police side, the government side, always has the upper hand.
Fairness is a vague word; each generation defines fairness in its own terms. There has been a long, dynamic process of evolution in the meaning and practice of “due process.” The following chapters tell, in part, the story of that evolution. The story has to be told on two very different levels. One is the level of theory. That level is interesting, and important. What the colonial laws said about due process; what the Constitution said, and state laws and constitutions; how courts and jurists squeezed meanings out of texts. This is significant, and undoubtedly makes some difference in the way the system works.
But consistent across time and space is the chasm between nice theories and grim practice. Criminal justice is more than mere words; it is patterns of behavior. The patterns imply ideas, ideologies, values, attitudes, but these are not the ones expressed in the higher culture, the official stories, the public propaganda. Police brutality, plea bargaining, and the third degree are just much a part of the fabric as decisions of the Supreme Court; and so, too, are thousands of unrecorded, tiny acts of minor clemency and petty tyranny at the level of the streets, station houses, courtrooms, and jails.
On both levels of the system, we can see developments that many people would label “progress”: a more humane system, more attention to the rights of people accused of crime. Not that the story marches along in a clear, linear way; there are zigs and zags and lurches, like a drunk trying to walk a straight line. There was some sort of climax, perhaps, in the 1950s and 1960s. At this stage, as I write these words (January 1993), the system seems to be on pause. There is some impulse to cut back on defendants’ rights, to speed up executions, to put more muscle into the system. How far this will go is a question. The public, on the whole, is quite disgusted with crime, horrified by crime; the idea of toughness is extremely popular. But, as we will see, it is much easier to talk tough than to put real toughness to work.
And we can and should question the concept of “progress” itself. The word is nothing but a label that we attach to change in a direction we like. There is a tendency to like what has actually happened. I doubt that many readers would want to go back to the whipping post, or the criminal law of slavery, or the lynch mob. We are not androids, with a built-in thought program, incapable of choice; but on the other hand, we are very much creatures of our time and place.
From where we stand, “due process” in the colonial period is apt to look weak and underdeveloped. As David Bodenhamer has put it, “the good order of society took precedence over the liberty of the individual.”118 This was true of the nineteenth century, and the twentieth, in many ways; but it was particularly true of the colonial period. Still, procedural justice was evolving; ideas were changing. Criminal process was not, for its time, particularly