This is a book about due process and how it can be diminished under political pressure. It tells a true story -- how California's Proposition 8, a "Victims' Bill of Rights," was conceived, drafted, passed, and implemented. This story is a parable extended throughout the book, and it leads to a moral: we should not be quick to embrace law and order ideologies that will actually harm the interests of people in whose name hard-line legislation is passed. The example of Proposition 8 is also instructive for confronting the difficult issue of how best to reform a practice that is almost universally distrusted: plea bargaining.
The concept of due process is currently out of fashion. A cherished ideal of Anglo-American jurisprudence enshrined in the wording of the U.S. Constitution and Bill of Rights and a common reference point in the daily work conducted in courthouses across the nation, it has nevertheless acquired a certain political stigma. Due process can mean many things, but at the very least it means that every citizen deserves a "day in court" and that the procedures used must be fair. How could such a fundamental standard of democratic decency fall into disrepute?
The answer is that it hasn't -- entirely. Nobody on the current American political or legal stage seriously proposes repealing the Sixth or Fourteenth Amendments. But an ideal lives only as it is applied, and, in both legislation and adjudication, due process is most decisively being carved back. It has not and will not be carved away, but it is seriously diminished when voters and legislators approve laws such as Proposition 8, which was designed to limit an accused person's opportunity to defend against criminal charges.
Perhaps the best way to describe this process is by reference to the seminal work by Herbert L. Packer, The Limits of the Criminal Sanction.1 Packer described an ideological tension apparent in criminal law, labeling the competing values "due process" and "crime control." He carefully noted that due process and crime control advocates usually