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Unpublished Paper
COUNTING HEADS: DOES THE EXISTENCE OF A NATIONAL CONSENSUS GIVE RISE TO A SUBSTANTIVE-DUE-PROCESS RIGHT TO A PARTICULAR CRIMINAL PROCEDURE?
ExpressO (2011)
  • Carrie Leonetti
Abstract

Anomalousness in a state’s criminal procedure(s), standing alone, is sufficient (to constitute a violation of substantive due process and that the substantive process due to a criminal defendant in a state with an anomalous criminal procedure is the process that would be provided to a similarly situated defendant in a mainstream jurisdiction. This does not mean that the fact that a majority of jurisdictions fails to afford a particular beneficial procedure to a criminal defendant means that such procedure is not guaranteed by due process. Nor is the recognition of a right by a majority of jurisdictions dispositive of whether such right is guaranteed by the Due-Process Clause of the Fifth Amendment. But the majority rule, where it inures to the benefit of a criminal defendant, should be the yardstick against which the burdens imposed by the minority jurisdictions are measured.

The Court has historically used the existence of a national consensus as at least one tool to determine whether a substantive due-process right exists. The existence of a national consensus (a head count) could itself convert certain claims of liberty or property into vested substantive due-process rights. A national consensus can, in essence, create a substantive due-process right where none existed before. At least under some circumstances, the federal constitution must recognize at least the same amount of constitutional protection as a consensus of states recognize, under their state constitutions, common law, and/or statutes and a consensus among states can give rise to a federal substantive due-process right to a particular criminal procedure.

This process of substantive-due-process right “creation” is a one-way ratchet. States may form a consensus about what new procedures are due to criminal defendants but may not erode by consensus rights to existing procedures that have already been recognized. When there has been a tradition of granting criminal defendants a particular beneficial procedure in the absence of formal recognition of such tradition as a legal right, the tradition alone can ultimately require such recognition, but it does not necessarily follow that the lack of a uniform tradition defeats the recognition of a legal right.

The laboratories-of-democracy metaphor of federalism does not work in situations in which states do not learn from their mistakes, even after the best solution has become clear. When a supermajority of states has acted, recognizing a particular right of criminal procedure, federal courts should use the line that the consensus of states has drawn as their starting point in determining the scope of substantive due process because, by acting in consensus, the states have already completed their policy experiment as the laboratories of democracy. Courts should bolster the “creation” of “new” rights when they are created by a consensus of state legislatures.

John Hart Ely’s representation-reinforcement theory of judicial review supports this proposal because the democratic process is particularly dysfunctional in the context of criminal law and procedure and the rights of criminal defendants cannot be adequately addressed and protected through the political process. For this reason, minority jurisdictions cannot reasonably be expected to join their majority brethren solely on the basis of the functioning procedural rights granted in those jurisdictions and this national-consensus methodology must be a one-way ratchet, permitting a majority of jurisdictions to impose upon a minority of jurisdictions a procedural right, but not to erode the guarantee of a right not recognized by most or all jurisdictions. Oregon’s and Lousiana’s nonunanimous jury-verdict rules are a case study of why individual jurisdictions cannot be relied upon to “do the right thing” in the absence of a constitutional mandate.

Keywords
  • due process,
  • criminal procedure,
  • consensus,
  • federalism
Disciplines
Publication Date
September 5, 2011
Citation Information
Carrie Leonetti. "COUNTING HEADS: DOES THE EXISTENCE OF A NATIONAL CONSENSUS GIVE RISE TO A SUBSTANTIVE-DUE-PROCESS RIGHT TO A PARTICULAR CRIMINAL PROCEDURE?" ExpressO (2011)
Available at: http://works.bepress.com/carrie_leonetti/20/