CRIMINAL JUSTICE AND DUE PROCESS

The application to the criminal justice system of the due process clauses of the Fifth Amendment and the fourteenth amendment raises three principal issues. First, which of the provisions of the bill of rights relating to police practices and criminal trials are "incorporated" by the Fourteenth Amendment's due process clause so as to apply against the states as well as the federal government? Second, what doctrinal framework should be used to evaluate claims about procedural due process in the criminal as opposed to civil context? Third, what doctrinal framework should be used to evaluate claims about substantive limits on police practices, or what has come to be known as substantive due process ?

The incorporation question is a consequence of the Supreme Court's decision in the post–world war ii era to pursue a doctrinal strategy of "selective incorporation" by which it considered each individual provision of the Bill of Rights and determined whether that provision was so fundamental so as to apply against the states pursuant to the due process clause of the Fourteenth Amendment. Although the Court explicitly rejected Justice hugo l. black's theory of "total incorporation" (by which every provision of the Bill of Rights would be incorporated against the states), it accomplished much the same result through "selective incorporation," given that almost every provision of the Bill of Rights has been individually incorporated.

As for criminal justice, almost every provision of the Bill of Rights relating to police practices and the conduct of criminal trials has been incorporated against the states. The fourth amendment limit on unreasonable searches and seizures and its exclusionary rule have been incorporated, as have the Fifth Amendment right against self-incrimination and its miranda rules. In addition, the Fifth Amendment's double jeopardy clause, the Eighth Amendment's cruel and unusual punishment clause, and almost every provision of the Sixth Amendment relating to criminal trials have all been incorporated.

Nonetheless, two important exceptions to this trend toward expansive incorporation are worth noting in the criminal justice context. First, the Fifth Amendment's grand jury clause has never been incorporated. Although that clause has been interpreted to require that all federal felony cases be based on an indictment by a grand jury, the Court explicitly rejected such a requirement for state criminal proceedings in the nineteenth-century case hurtado v. california (1884), and it has never revisited the issue. Thus, states are constitutionally free to structure their charging mechanisms in other ways. A substantial number of states use grand juries for some cases, but some jurisdictions give prosecutors greater power to charge by information than would be constitutionally permissible in federal courts, and some jurisdictions use alternative (and perhaps more rigorous) methods to "check" prosecutorial charging decisions. Among those alternatives are judicially conducted preliminary hearings or judicial inquests, also known as "one-man grand juries." Second, although the Court incorporated the Sixth Amendment right to trial by jury in nonpetty criminal cases in duncan v. louisiana (1968), it failed to incorporate that aspect of the jury right that requires jury unanimity in federal criminal trials. This peculiar result arose from the fragmentation of the Court in the 1970s. Four Justices (led by Justice byron r. white) believed that the Sixth Amendment required neither federal nor state criminal juries to be unanimous; four other Justices (led by Justice william o. douglas) believed that the Sixth Amendment required both federal and state criminal juries to be unanimous. Justice lewis f. powell, jr. , provided the fifth, "swing" vote on the matter, declaring that the Sixth Amendment required jury unanimity in federal, but not in state, cases. Thus, both in grand jury practice and in the degree of unanimity required of criminal juries, states remain significantly freer than the federal government to pursue their own policies without running afoul of the Fourteenth Amendment's due process clause.

The second set of issues raised by the intersection of the due process clause and the criminal justice system—the requisites of procedural due process—have become murkier in recent years. On occasion in the last few decades, the Court has seemed to assume that the doctrinal framework for analyzing claims of inadequate procedures should be the same in the civil and criminal contexts. Thus, for example, in deciding whether indigent criminal defendants should be entitled to state-funded psychiatric assessments in capital punishment trials, the Court applied the same balancing test that the Court had applied to claims regarding procedural due process in civil contexts. However, in a more recent case, Medina v. California (1992), the Court explicitly rejected this approach and held that the standard should be one more deferential to state interests: courts should uphold a challenged state procedure "unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." The Court reasoned that in light of the explicit provisions of the Bill of Rights relating to criminal procedure, expansive readings of the due process clause would give inadequate deference to considered legislative judgments. After Medina, it remains to be seen both how deferential the Court's standard will turn out to be, and how the Court will choose whether a particular procedural challenge should be considered under a specific provision of the Bill of Rights or under the more general due process clause.

The third principal issue—substantive due process—has likewise been addressed recently by the Court, and in a similar fashion that has both narrowed the scope of possible challenges and raised questions about the future. The Court has held, from the early part of this century, that the due process clause not only ensures fair procedures, as its text most obviously suggests; it also is the source of certain substantive limits on governmental power. In the criminal justice context, the Court has held that the due process clause renders unconstitutional some police practices and some treatment of pretrial detainees. The Court has assumed that the "deliberate indifference" of governmental actors to certain kinds of harms—for example, inattention to prisoners' medical needs—is enough to violate the due process clause. But in County of Sacramento v. Lewis (1998), a case involving a high-speed police pursuit that resulted in death, the Court held that the "deliberate indifference" standard was too accommodating to plaintiffs in cases that involve on-the-spot police decisionmaking. In such a context, a court should decline to find a violation of due process unless the actions of the police were so egregious as to "shock the conscience." It remains to be seen which other contexts within the criminal justice system will be held to require the more deferential "shocks the conscience" standard. The narrowing of opportunities for substantive due process challenges within the criminal justice system reflects the growth of a more general skepticism on the Supreme Court for "substantive" regulation under the due process clause.

Carol S. Steiker
(2000)