The words "due process" might not ignite our sense of national pride in the same way as words like "liberty," "justice," or "equality," but they should. And the promise of due process — that every person, when faced with threats to their life, liberty, or property, will have a chance to have their side meaningfully heard and considered — has never stood on shakier ground.
In the most recent issue of the New Yorker, investigative reporter David Grann methodically lays out the facts leading up to the 2004 Texas execution of Cameron Todd Willingham — a man who was convicted of arson murder for a fire that killed his three young children. Later evidence and analysis by a series of national experts showed that the fire had been an accident and, in fact, no crime had occurred.
It’s tempting to blame Willingham’s wrongful death on an isolated cast of characters.
Willingham’s defense attorneys at trial were convinced that he was guilty, which doubtlessly affected, in one way or another, the zealousness of their representation.
The local fire investigators were so cocksure of their scientifically-untested abilities to discern arson from accident that they comfortably stated under oath that Willingham had intentionally set the fire to "kill [his] little girls."
And even though the 15 members of the Texas Board of Pardons and Paroles were each provided the report of a nationally-recognized fire and explosives expert, who had reviewed the evidence and concluded that the fire was likely caused by faulty electrical wiring or a space heater, it is not certain that any of them read it. They chose not to call a hearing to consider the new evidence and each of them voted to deny Willingham’s petition for clemency.
But these failings of bias, ego, and energy, while shockingly egregious in effect, are unfortunately not exceptional.
According to an April 2009 report of The National Right to Counsel Committee, the overwhelming caseloads of public defenders has resulted in defense attorneys "who are so overburdened with cases that [they] are violating their professional obligations as members of the bar," "are constantly risking their clients’ rights to effective representation," and are "forced to choose among their clients." Similarly, the Texas Board of Pardons and Paroles reviews "tens of thousands of cases each year," with "no checks and balances in the system," and it is apparently known that the members often fail to read the files.
It is not surprising that, under these circumstances, it often becomes easier to assume the guilt of the accused than to perform the arduous legwork involved in proving, or sometimes even considering, a person’s innocence.
But even when faced with unsustainable workloads and the too-easy assumption that people accused are getting their just desserts, we cannot forget the promise of due process.
For public defenders and all people reviewing criminal charges, convictions, and sentences, we can demand that states establish and enforce reasonable workload limits, in order to ensure that the cases of each accused person is scrutinized for errors and the taking of their liberty and lives is treated with the gravity it deserves. Relatedly, we can support public investment in defender services, including allowances for the costs of meaningful investigation.
To protect against the use of faulty forensic methods, we can call on Congress to create a National Institute of Forensic Science that can research the accuracy of forensic disciplines and set standards for how our system of justice uses science.
Meaningful due process can protect us from our own worst inclinations, and can be achieved only with the vigilance and support, both personally and politically, of each of us.
So the next time you hear someone mention the soaring goals of "justice," "equality," or even "hope" in passing, you can interject, "and due process," and feel good for having taken one small stand for human dignity.
Read more at The Opportunity Agenda website.
