Reconceptualizing Due Process in Criminal Justice: Contributions from Law and Social Science.

Source: (2005) ExpressO Preprint Series. Paper 748. The Berkeley Electronic Press (bepress). Downloaded 14 October 2005.

This article challenges the accepted wisdom, at least since the Supreme
Court’s decision in Gault, that procedures in juvenile delinquency court should
mimic the adult criminal process. The legal basis for this challenge is Gault itself,
as well as the other Supreme Court cases that triggered the juvenile justice
revolution of the past decades, for all of these cases relied on the due process
clause, not the provisions of the Constitution that form the foundation for adult
criminal procedure. That means that the central goal in juvenile justice is fundamental
fairness, which does not have to be congruent with the adversarial
tradition of adult criminal court. Instead, as the Court’s administrative procedure
cases illustrate, fundamental fairness theory aims at constructing the
procedural framework that best promotes fairness, accuracy and efficiency in
the setting in question. Social science, and in particular procedural justice research,
can play an important role in fashioning this framework, because it can
empirically examine various procedural mechanisms, in various settings, with
these objectives in mind. To date, procedural justice research suggests that the
procedures associated with the adult criminal process are not optimal even in
that setting, much less in a regime focused on rehabilitating or punishing children.
We propose a performance-based management system for implementing
these legal and scientific insights in the juvenile justice context. Author’s abstract.