Wednesday, July 25, 2012

Process and Due Process

Tim does a great job exposing the problems with the complaints about due process and consent decrees, as Mike initially discussed. I want to add two more thoughts.

First, the mistake people are making is to assume that only the state or a state actor can provide process and thus to settle or enter "consent decrees."But any large organization can (and frequently does) accord process as part of its decision making. Think about how, say, a private university adjudicates student disciplinary matters. Providing process does not make a private entity a state actor. But a private entity that provides process can accord whatever process it believes is fair or appropriate; it is not bound by constitutional notions of what process is due, but only what its members (and perhaps the public) regard as fair. Similarly, if a private entity wants to call the resolution of its private processes a "consent decree," it is free to do so, without any state action or constitutional implications.

Second, it is worth considering how we should understand the Freeh Report from a due process perspective. The Paterno family has repeatedly (after thes tatue was removed and again after the penalties were announced) complained that their lawyers never were given an opportunity to cross-examine witnesses or to call and question their own witnesses. The Freeh Report thus was a one-sided "prosecutor's brief," and PSU's and the NCAA's reliance on the Report disregards due process.

But another way to look at the Freeh Report is as a decision by a judge in an inquisitorial judicial system, where the judge, acting as a neutral factfinder, gathers information himself. Attorney involvement and control and cross-examination of witnesses are not a core part of these proceedings; thejudge is charged with calling and questioning witnesses and gathering evidence to make a decision, including finding facts and drawing inferences. This certainly sounds like Freeh's charge from the Penn State Board of Trustees andit certainly sounds like what the Freeh Report sought to do. While different from the adversarial system that generally (although not exclusively) prevails in the United States, it cannot be that reliance on inquisitorial processes violates due process.