Write a 600-word (2 page, double-spaced) summary of each day’s material, including: (a) a brief summary and analysis of the day’s reading; (b) any questions or concerns you have about the day’s materi
Due Process Central Question What is the proper balance between fighting crime and the rights of may -be criminals? And what is the proper balance between the interests of victims and their advocates, including the government, and the rights of the accused? Class Today 1. Due Process in the Bill of Rights, and Due Process in Practice 2. An Added Difficulty: The 13 th Amendment 3. Video: 13 th (2016) 4. Due Process in the #MeToo Era 1. Due Process in the Bill of Rights, and Due Process in Practice Amendment 4 “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Amendment 5 “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Amendment 6 “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” Due Process in Practice “Full -blown trials of guilt or innocence rarely occur; many people never even meet with an attorney; witnesses are routinely paid and coerced by the government; police regularly stop and search people for no reason whatsoever; penalties for many crimes are so severe that innocent people plead guilty, accepting plea bargains to avoid harsh mandatory sentences; and children, even as young as fourteen, are sent to adult prisons. Rules of law and procedure, such as “guilt beyond a reasonable doubt” or “probable cause” or “reasonable suspicion,” can easily be found in court cases and law -school textbooks but are much harder to find in real life.” – Michelle Alexander, The New Jim Crow , pp. 59 -60. 2. An Added Difficulty: The 13 th Amendment The Amendment’s Text • Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. • Section 2. Congress shall have power to enforce this article by appropriate legislation. “… Except as a Punishment for a Crime …” • Six years after the 13 th Amendment, Virginia declared prisoners to be “slaves of the state.” • From the Prison Policy Initiative : – Currently, in Federal Prisons, all able -bodies prisoners are required to work. – Minimum wage for UNICOR (the Bureau of Prisons industry group) currently begins at $0.23 per hour. – In private industry, wages can be as low as $0.16 per hour . • Some scholars suggest that slavery didn’t end; it was replaced by a carceral system that asymmetrically targets African Americans. 3 . 13 th https://www.youtube.com/watch?v= krfcq5pF8u8 4 . Due Process in the #MeToo Era: Hernroth - Rothstein v. Lapidus and Park Henroth - Rothstein, “#MeToo and Trial By Mob” • Anxieties about the #MeToo movement:1. “I always fear a mob, whatever side it comes from and whatever the initial purpose and aim.
A good idea can become mass hysteria in an instant, and important basic rights and responsibilities can be set aside.” 2. “[I] nappropriate comments are not the same thing as groping, which is not the same thing as rape, and I believe those distinctions matter.” The Presumption of Guilt? “As a mother raising boys in this era, one of them a teenager, I now have to have a long talk with them, warning them that they can be accused after the fact, that in any and all situations that start off consensual they can be deemed a culprit, and that it is important to err on the side of caution when it comes to relationships with girls.” Let the Judicial System Work “Everyone, man or woman, who is the victim of a crime should be encouraged to report it, and should have the full support of our society if they do. We should criticize the justice system when it fails, but we must follow due process when it comes to crimes, because if we don’t, everyone will suffer.” Lapidus and Park, “The Real Meaning of Due Process in the #MeToo Era” • Who owes due process?
– “[Due process] is triggered only when the government itself acts to deprive an individual of [life, liberty, or property]. As a legal matter, it does not apply to private business, much less in the court of public opinion.” – Is this true? Should it be true? A Broader Point About Fairness • “For far too long, those who suffered domestic violence and sexual assault — the vast majority of whom are women — have been disbelieved, ignored, and even punished.” • “Even in the current, more receptive #MeToo moment, the credibility of people alleging sexual harassment or assault seems to depend on corroboration by multiple victims or undeniable evidence. The allegations against Harvey Weinstein, for instance, became a matter of public outrage only when the number of women coming forward reached a breaking point; individuals who had previously alleged sexual assault by Weinstein had been ignored.”
