In this special edition of “An Adjudicator’s Toolkit” I am trying out the podcast feature on Substack. In February, I had a conversation with Professor Brandon Garrett of Duke University about his new book, “Defending Due Process: Why Fairness Matters in a Polarized World” for my review of the book on Slaw. That review has been published today. Our discussion covered more than I could include in my review, and in light of the current attacks on the Rule of Law and procedural fairness in the United States, I thought the full conversation would be of interest to many of the readers of this newsletter.
If it proves to be popular, I may continue with monthly podcasts — let me know if you would find that of interest and, if so, who you would like to hear from.
For now, podcasts will be included in the free subscription to “An Adjudicator’s Toolkit” along with the transcript. If you appreciate the work that goes into this newsletter, I encourage you to take out a paid subscription.
I will be back next week with case comments and links of interest.
The following transcript has been “cleaned up” using AI. As far as I can tell, all that has been done is the elimination of duplicate words as well as the completion of incomplete sentences. Fun fact: one of my earliest jobs (before law school) was as an editor for the House of Commons, where I would do the same thing to committee hearing transcripts, making Members of Parliament sound coherent. So, one of my jobs has been replaced by AI…
Ian R. Mackenzie: Great. I enjoyed your book. I thought it was a very good overview of due process and why we should care about it—obviously from an American perspective, but I think it's easily transferable or relatable to Canada and anywhere in the common law world.
Brandon Garrett: Even if the terminology is slightly different in every country.
Ian R. Mackenzie: That's right. Maybe you could talk a little about your motivation to write the book, where the ideas came from, and what inspired you to invest the time and effort into putting it together.
Brandon Garrett: Sure. My motivations were several. I noticed that in classes with my law students, there had been a change over more than a decade. Procedural fairness and due process concepts used to be central to legal education. When I was a law student, multiple classes began with the Due Process Clause of the U.S. Constitution. Even when studying specifics like civil or criminal procedure, it was framed with the idea that these rules ensure the fairness people expect in court. These bedrock values are protected by the Due Process Clause, and fortunately, we don’t often need to rely on constitutional rights because we protect them in many ways.
But over the years, that began to be missing. I also saw more open skepticism of the idea that fairness should matter. Many seemed to think getting the right outcome was more important. At the same time, I saw frustration in society with the idea that courts are too technical, take too long, and that fairness can be gamed by the wealthy. Increasing skepticism arose over whether it was even valuable to have a neutral and impartial decision-maker.
These problems exist in a broader context of increasing polarization. People want the right thing to happen immediately. There’s also a technological aspect—people are used to instant reactions, like canceling someone on social media. Additionally, people are more convinced that their side is right and want to see the punishment of the other side, irrespective of fairness.
This all deeply disturbed me, and it aligned with what I was seeing in my own research. I also personally experienced this widespread distaste for due process in my engaged work, such as bail reform. It impacted my life’s work—improving fairness in the criminal justice system. It’s much harder to do that when people don’t think fairness matters.
Ian R. Mackenzie: Right. And in your book, you discuss your personal experiences representing people as well.
Brandon Garrett: Yes. I mention that, like most people, I didn’t initially know what due process was. But representing people in welfare hearings in New York City convinced me that being a lawyer could be a noble and exciting profession. You didn’t have to be a lawyer to do that work. People don’t have a right to a lawyer in these administrative hearings. They're informal, but during the time Rudolph Giuliani was mayor and welfare reform was being implemented, there was pressure to kick people off the rolls quickly. I saw firsthand how unfair these hearings were.
Most of my clients had serious behavioral health needs, were mostly homeless men, and had no idea what was happening to them without an advocate. These people were already on the edge, and losing minimal food stamps and benefits could be deadly.
It was striking to learn in law school that a landmark U.S. case cementing due process rights in administrative settings came from similar welfare cases in the very neighborhoods where I worked. That case established the right to a hearing under due process. But by the time I was in law school, those rights had been eroded. While due process still matters, its protections have been chipped away. However, in recent years, there have been some surprisingly robust due process rulings from the U.S. Supreme Court, despite its conservative stance on other rights issues.
People care about due process when it affects them. It’s easy to overlook fairness when you just want a specific outcome, but when you’re in the system, it matters deeply.
Ian R. Mackenzie: I used to discuss this with colleagues and people appearing before our tribunal. It might come across as patronizing, but I’d refer to the Golden Rule: imagine you were sitting at that table—what would you want? People often realize they want more fairness for themselves than they are willing to give others.
Brandon Garrett: Unfortunately, this is a global issue. Courts are under attack, and justice is slow because it takes time to listen to both sides and make reasoned decisions. These are values we cannot take for granted.
People may think due process is boring, but courtroom drama is popular—what are crime shows about? They showcase the drama of both sides presenting their case. American trials, in particular, attract interest worldwide because they are adversarial, lengthy, and both sides get to fight for their position. That tells us something about the deep appeal of having a real chance to tell your story before punishment is decided.
Ian R. Mackenzie: It’s also a circular problem. In Canada, and I assume in the U.S., justice—whether criminal or administrative—is not high on politicians’ priority lists. Courts and tribunals are underfunded, which slows processes down. That reinforces the belief that justice is too slow when, in reality, it’s slow because it’s under-resourced.
Brandon Garrett: That’s right. And then, in response, people suggest cutting court budgets or reducing lawyers’ roles, assuming they slow things down. Instead of funding courts properly, the answer is often to fast-track cases, sacrificing fairness. Over time, this leads to serious mistakes, not just unfairness. These errors matter in civil cases, family law disputes, criminal charges, and more—they affect millions of lives. Justice is like the air we breathe in any country and rushing it for efficiency’s sake is deeply problematic.
Ian R. Mackenzie: People often say that you can affect change just by talking to people—helping them see things from a more balanced perspective.
Brandon Garrett: That’s true. Our public officials are supposed to deliberate on community problems. And we’ve seen real changes in public perceptions. For instance, punitive attitudes toward people with mental illness have shifted over the past few decades. While politics today may seem more polarized and vitriolic, significant progress has been made on issues once thought immovable.
Ian R. Mackenzie: A good example in Canada is our shift toward harm reduction in drug policy, including safe injection sites. However, there’s pushback, particularly from the right, which favors mandatory treatment over harm reduction. There’s an ongoing debate, but change happens.
Brandon Garrett: That response didn’t necessarily affect a broader swath of the public—different demographics, various age groups. But maybe there were some lessons learned, particularly the idea that you can't simply arrest your way out of public health problems. That provides some hope.
Some of the other examples I discuss in the book involve low-level justice issues that aren’t particularly visible to most people. These due process problems tend to occur in low-level courts or administrative hearings, where there isn’t necessarily a judge present. A lot of people are affected, but middle- and upper-class individuals often don’t see it. If you can afford to pay a $20 parking ticket or a traffic fine, you don’t experience what it’s like to go through traffic court or attend a hearing for something like a garbage disposal violation or late tax payments.
These minor infractions disproportionately affect those with fewer resources. Turning vulnerable people into defendants in these low-level proceedings is harmful to communities. Yet, these aren’t the kinds of courts where there are many observers or where people routinely have legal representation. That makes it difficult to shine a spotlight on these systems.
We haven’t even touched on AI yet, but technology is increasingly playing a role in these spaces, introducing automated justice in settings where people don’t necessarily have trial rights. This makes it tempting for government agencies to process even more cases quickly and inexpensively—often at the cost of fairness. That’s a growing concern.
Ian R. Mackenzie: That was actually my next question. You mention AI as an important area to regulate due to its implications for due process. Could you elaborate on your major concerns regarding AI’s current use? And are there ways to implement it more fairly?
Brandon Garrett: There’s no question that AI brings many conveniences, and its development has been accelerating rapidly in recent years. There are exciting, useful tools, but also significant concerns about its impact on people’s work and daily lives.
In my book, I focus on one specific issue: how the government uses AI. The most fundamental principle of fairness is that if the government takes away your property or freedom, there must be a clear, understandable reason, and you must have an opportunity to contest it. You can't have an automated system deciding to imprison someone, seize their property, or garnish their wages without transparency.
But AI systems aren’t typically designed to provide those explanations. They often operate as black boxes, meaning even those using the technology may not understand how decisions are made. However, research into interpretable AI—sometimes called "glass box" systems—shows that AI can be designed to provide clear, understandable reasons for its recommendations. Studies indicate that these systems are just as effective as black-box models but with greater transparency.
For example, in the context of bail decisions, a system might assess a person’s risk of reoffending based on factors like prior arrests and age. A well-designed system could help bail hearing officers make more informed decisions without relying on gut instincts alone. But it must be transparent. It can’t just issue a vague risk score with no explanation. A lawyer should be able to contest the assessment, and a judge should understand how it was determined.
These systems should be built with fairness in mind from the start. Unfortunately, that’s not how they’re typically developed. In some cases—like traditional actuarial risk assessments used by criminologists—there is transparency. These simpler models rely on clear, documented factors, making it easy for judges and lawyers to evaluate their accuracy. But increasingly, providers are marketing AI tools that claim to assess risk or match faces without disclosing how they work, expecting courts and law enforcement to simply trust the results.
That’s a major concern because we’ve already seen black-box AI systems lead to wrongful arrests and other injustices. Some of these systems have been exposed as deeply flawed, even fraudulent, yet they continue to be used by governments.
Ian R. Mackenzie: Is AI, particularly black-box AI, being used extensively in the U.S. justice system?
Brandon Garrett: One of the most common uses is facial recognition technology. Many countries use it, but these systems often operate in opaque ways. Even the officers using them don’t know exactly how they work or how strong a supposed match is. Are there hundreds of other faces with similar scores? How reliable is the match? They often have no idea.
In the U.S., due process protections have prevented facial recognition searches themselves from being introduced as direct evidence in court. Instead, they’re used behind the scenes to generate leads. But those leads can result in wrongful arrests and imprisonment, as we’ve already seen in several high-profile cases.
Beyond facial recognition, we continue to see new AI tools being introduced. For example, last summer, a major provider of police body cameras, Axon, rolled out generative AI for police reports. Officers can now use AI to generate reports from body camera footage. The company has positioned this as a tool for handling minor cases, but there are serious concerns about reliability and potential misuse.
Ian R. Mackenzie: I don’t want to take too much more of your time, but turning to current events, do you think American institutions have sufficient guardrails against attacks on due process, given the executive actions we’ve seen in the last month?
Brandon Garrett: Without getting into specifics—because things are evolving rapidly—the key question is whether our institutions can effectively enforce legal safeguards. Due process is a foundational principle, but it requires active oversight and enforcement. If legal protections are ignored or undermined, then no matter what safeguards exist on paper, they won’t be meaningful in practice.
You know, there's all kinds of litigation in lots of different courts. Due process challenges can take longer. A lot of the cases we've heard about—challenging different executive orders and the like—have been about the authority of the Executive Branch versus Congress. They've tended to focus on separation of powers and structural constitutional issues.
Due process rights and fairness rights take longer because there have to be individual people who are harmed—people whose liberty or property is threatened. So, it will take some time for this Lakin Riley Act to result in someone being placed in mandatory detention based on a shoplifting arrest, for them to have a lawyer, to file a case, and for that case to move forward.
It’s sometimes the case that corporate defendants have the resources to bring large cases faster. I think there's a due process challenge to the TikTok legislation in Canada, just like there was in the U.S. Companies certainly have property rights, even if they don’t have liberty. So often, those cases move much more quickly than cases involving individual people, who take longer to get representation and bring cases to court.
Ian R. Mackenzie: I did hear that there were at least three people set to be deported to Guantanamo who filed a lawsuit. So, that whole shipment to Guantanamo Bay—is that a procedural fairness and due process argument, as well as a constitutional one?
Brandon Garrett: Interesting, I hadn’t heard that. I was wondering—if people are in detention, how do they even get representation? It’s not easy.
Ian R. Mackenzie: I just saw the headline. I didn’t drill down into the details.
Brandon Garrett: Post-9/11, it took quite some time for detainees to get legal representation.
Ian R. Mackenzie: In your book, you mention how courts have not been as vigilant lately on due process. Do you see that as a concern going forward?
Brandon Garrett: I do. Courts have applied somewhat inconsistent due process tests. The evidence they rely on to decide whether there’s a due process violation has varied. In general, courts often don’t examine how unfairly a person was actually treated on the ground. Instead, they look at whether the procedures on paper seem adequate.
It’s a very artificial and formal way of approaching due process.
We see the same artificiality in administrative contexts when courts focus on cost-benefit analysis. If you actually analyze costs and benefits carefully, fairness protections are often inexpensive, and the errors from lack of due process can be extremely costly. But courts often take a superficial approach to this analysis.
The U.S. Supreme Court, in particular, has been very focused on history and tradition when interpreting constitutional rights. But even then, their analysis is often formalistic and artificial. They might claim there’s a tradition of flexibility in a given process, but if you look at historical evidence carefully, it often supports providing individuals with robust notice and an opportunity to be heard. Due process protections are deeply grounded in historical legal traditions worldwide.
Judges can also be reluctant to critique unfair treatment by other courts. Deference to colleagues and lawmakers’ choices can prevent them from intervening when they should. That’s problematic because fairness and legitimacy are at the core of what courts are meant to protect.
Ian R. Mackenzie: For those of us in Canada who are concerned about rule of law and due process in the U.S., are there nonpartisan organizations doing important work on these issues that we can support or look to for guidance?
Brandon Garrett: Oh, there are so many different organizations, and it really depends on the region. International NGOs and human rights groups focus on global issues, whereas domestic groups like bar associations are more U.S.-focused.
In the U.S., the American Bar Association and various lawyers' groups play a significant role. In other countries, human rights organizations or a mix of both might be more influential.
Another important area of work is courtroom and hearing observation—bringing transparency to spaces where the public may not have easy access, like bail hearings and low-level judicial proceedings. NGO observers and lawyers' groups often go into these settings and document what’s happening, which is crucial.
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