Defending Due Process: Why Fairness Matters in a Polarized World

We all feel unfairness deeply when treated in rash ways. We expect, and the law requires, government officials to take fairness seriously, giving us notice and an opportunity to be heard before taking our rights away. That is why the U.S. Constitution commands, twice, that no one shall be deprived of life, liberty, or property without due process of law. Yet, in overheated debates, people argue that others do not deserve any presumption of innocence. In courtrooms and colleges, police stations and jails, restaurants and libraries, print and online, the democratic value of due process is up for grabs.  Why is due process under so much pressure? Brandon Garrett exposes widening fault lines. One division lies within our own attitudes, and he explores why we are tempted to put desired outcomes before fair process. Another lies in government, as judges adopt toothless due process rules. People are trapped in debt for unpaid traffic fines; sheriffs seize and forfeit belongings; algorithms suspend teachers’ employment; officials use flawed data to cancel healthcare; and magistrates order arrestees to be jailed because they cannot pay cash bail. Meanwhile, the rise of AI threatens what remains of due process with black-box technology. To fight against such unfairness, lawyers try to challenge unjust systems, researchers demonstrate why such processes are so counterproductive, and lawmakers try to enact new protections. Common ground matters now more than ever to mend political polarization, cool simmering distrust of government, prevent injudicious errors, and safeguard constitutional rights. A revival of due process is long overdue.

Table of Contents:
Preface Acknowledgments 1 Introduction 2 Divided About Due Process 3 The Rise of Modern Due Process 4 The Hidden Cost of Unfair Process 5 Connecting the Stakes 6 Error Prone 7 Discriminatory Process 8 Processed by AI 9 Due Process Reforms 10 Due Process for All Appendix Notes Index

About the Author :
Brandon L. Garrett is the L. Neil Williams, Jr. Professor of Law at Duke University School of Law. A leading scholar of criminal justice outcomes, evidence, and constitutional rights, he is the author of several books, and has published numerous articles in leading law reviews and scientific journals. His work has been widely cited by courts, including the U.S. Supreme Court, lower federal courts, state supreme courts, and courts in other countries. He is the founder and faculty director of the Wilson Center for Science and Justice at Duke.

Review :
“Defending Due Process is stunning in its originality; it is, in every way, a superb book that deserves a wide readership. I know of no other work like it.” Erwin Chemerinsky, University of California, Berkeley “Defending Due Process does just what the title promises — it makes a persuasive case for the importance of procedural values. Brandon Garrett has done a wonderful job of making the topic accessible by illustrating his argument with compelling and often heart-wrenching stories of people harmed by government actions they can barely comprehend. This is an important book for anyone who wants to understand the virtues and vices of our legal system.” Stuart Banner, University of California, Los Angeles “What counts as a fair process when the government is taking away your liberty or your property? No question is more fundamental to our legal system, and no question is harder to answer with precision. Defending Due Process offers a comprehensive rethinking of the problem, drawing on narrative, original empirical research, and a cautious assessment of emerging technologies. Scholarly rigor is combined with readability, making this a valuable read for anyone who cares about getting fairness right in a complex and changing world.” Noah Feldman, Harvard University “Whenever we are wronged or feel wronged, we rightfully want to understand what happened, and why, and to have a chance to object. Governments and companies increasingly make crucial decisions about us that shape our lives, but we have little chance to say anything. With his characteristic care and wisdom, Brandon Garrett helps us understand the importance of due process in all aspects of our lives. Clearly and compellingly, he shows us how, in ways personal and societal, due process has the potential to repair and reinvigorate our democracy. Bravo.” Danielle Keats Citron, University of Virginia School of Law