80 When is “due process” arbitrary?

Posted on March 26, 2012 by

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George ZIMMERMANN of Sanford, Florida allegedly killed a black youth walking to a store. The man claimed innocence under the Stand Your Ground Law. Media hype about slack prosecution has led to criticism of the judiciary authorities and widespread punditry on the case. “Due process” activists now argue that ZIMMERMANN is being “tried in the court of public opinion” and denied “due process”.

We have a circular contradiction[1], with predictable outcome. If the authorities do nothing, ZIMMERMANN goes away scot-free. If the authorities are bullied by the media ZIMMERMANN goes away scot-free because he is being denied “due process”. Either way he appears likely to win – there must be something wrong in the arguments.

This case leads me to point out an inherent arbitrariness of “due process”– and to reflect by analogy on current international issues.

Former US Supreme Court Justice John Paul STEVENS[2] points out one inherent arbitrariness of “due process”: in laying his charge for murder the (politically appointed) District Attorney has a discretionary right to seek the death penalty or not – statistical surveys show that race and class are not absent from the decision-making process. In fact, I’d to enlarge on STEVENS: in up to 90% of criminal cases plea-bargaining takes place[3], which is essentially discretionary and lacks transparence – to say the least. It is the most wide-spread use of “what’s good for the parties is good for justice” I know of.

True, a judicial procedure, once initiated, is subject to “due process”. But the most important decision – whether to initiate such a procedure or not – is discretionary within broad limits. It is a “sovereign”[4] act, which Giorgio AGAMBEN, following Carl SCHMITT, defines as the “the power to decide the state of exception”.

That the decision not to prosecute necessarily is a “sovereign” act as can be seen nicely in the ZIMMERMANN case. We set “time-limits” on the District Attorney’s sovereignty by subjecting him to electoral review. Such a review, however, must remain global and not rest on a single event – the individual act of the District Attorney remains sovereign.

Let’s now turn to international affairs. Here we have a symmetrical but opposite situation.

Most countries have a checkered “human rights record”. The international community only takes a few to task in a process of public “shaming”. The choice of target is an eminently political process. Burma and China are pilloried for their record; by comparison India gets away easily. Self-righteous hectoring of the “born again” is also noticeable. Many countries cannot shed the feeling that “human rights” are “for export only”[5].

Countries so fingered for public opprobrium protest. In a first round, they may deny the facts or point to the context. More fundamentally, however, they reject the “sovereign” character of a “sovereign” process against which they feel they have no recourse. Countries which have been denied existence (colonies) or legitimacy – for over twenty years Mainland China’s government was deemed by the hegemon to be “illegitimate” – are particularly sensitive. We should be aware of this sensitivity.

“Shaming” may be effective, but it comes with the implicit threat of exclusion from the community of countries, should the regime not reform – shamed countries may be classified as “rogue states”. Shaming may be perceived by the states wielding it as an exercise in “soft power” – while it may be perceived by the target as blunt, undifferentiated and arbitrary. Care in wielding the “soft power” of “shaming” should be foremost on political minds.


[1]              Patrick HUGHES – George BRECHT (1978): Vicious circles and infinity. Penguin Books, Harmondsworth.

[2]         John Paul STEVENS (2012): A Struggle with the Police & the Law. New York Review of Books, April 5.

[3]           Plea bargaining is a significant part of the criminal justice system in the United States; the vast majority (roughly 90%) of criminal cases in the United States are settled by plea bargain rather than by a jury trial. http://en.wikipedia.org/wiki/Plea_bargain

[4]           Giorgio AGAMBEN (2003): Stato di Eccezione. Homo sacer, 2,1. Einaudi, Torino.

[5]           Great Britain, a leader in the establishment of the European Convention on Human Rights, was severely embarassed when the first case under the Convention was filed by Cyprus, then a UK colony. See A. W. BRIAN SIMPSON (2001): Human rights and the end of empire. Britain and the genesis of the European Convention. Oxford University Press.