FAIRNESS IN GOVERNMENTAL PROCEDURES
The problem considered in this chapter is that of fairness in the procedures by which governmental power is applied against the individual citizen. Mr. Justice Frankfurter has remarked that "the history of American freedom is, in no small measure, the history of procedure."1 And that procedure, throughout the development of Anglo-American jurisprudence, has been marked by a deliberate effort to establish and maintain a series of safeguards designed to curb the power of the government in its dealings with the individual. The strong feeling that individual freedom demands such protection has its historical roots in the struggle against the arbitrary and excessive power of the English kings and their representatives. It retains its current justification in the fact that an individual citizen increasingly finds himself at a serious disadvantage when confronted by the over- whelming power, prestige and resources of the state. Further, the procedural rights characteristic of Anglo-American law are based upon the principle not only that innocent and guilty alike are necessarily entitled to share the protections but that fairness to the innocent will inevitably result in some of the guilty escaping punishment. On the other side of the scale must, of course, be placed the fundamental interest of the community in being able to protect itself effectively against anti-social conduct.
In its broader aspects the problem encompasses not only fairness in judicial proceedings -- criminal and civil -- but fairness in executive or administrative proceedings and also in legislative proceedings. The materials in the present chapter, however, will be confined to certain aspects of criminal procedure.
The right to security of the person against abuse of governmental process in the Federal system of criminal law rests upon certain provisions of the United States Constitution. The chief of these are the guarantee of the right to habeas corpus and certain of the provisions of the Bill of Rights:
The Privilege of the Writ of Habeas Corpus shall not be sus-____________________