Remember why we want due process: so that the innocent go free, the guilty are punished, and the correct sentence is administered in a timely fashion.
The first point is that proving a negative (that a person did not commit a crime) in a free society, usually is impossible. So we only consider the matter from the perspective of proving people are guilty.
The most direct proof is the direct eyewitness of a crime, along with the corresponding availability of the physical evidence. If all bystanders were reliable, the single-person judge, jury, and executioner approach would be optimal; as it is not, we cannot be so direct about law enforcement in most cases. Often people consider police officers as being the equivalent of reliable eyewitnesses; this is a special case of considering vetted individuals as reliable bystanders.
Is it possible to consider that there are no reliable bystanders (true or effectively considered) in a system of justice? No – someone has to stop crimes in progress. The requirement to stop crime sprees and rampages requires some set of individuals to be tasked as reliable, and therefore capable precisely of applying force and restraint. It also happens that the most extreme cases, relative to the use of violence to subdue the assailant, also tend to be the ones requiring the least supervision and restraint, due to the requirement for prompt response. (e.g. active shooters)
The next question becomes, to whom will you entrust this responsibility, and under what circumstances? In a densely populated city with a well funded police department, you could consider that even the banning of lethal self defense might be optimal relative to the costs of arming and training the population, especially if there is a large deviant element that would misuse firearms and similar. However, such a policy clearly is incorrect in a rural area, and in any case when the funding of police is insufficient to provide low response times. One could consider the ideal of a small vetted police force, as a society that approximates a well-run prison (so the police clearly are superior to the mass of the population), and the ideal of popularly armed citizens, as one that approximates the state of nature, or the dominance of criminal organizations, possibly including the government (so the ordinary citizens either are equal to or better than the vetted individuals).
The other dimension of informational reliability (not skill in carrying out suppression) is not merely the basic trustworthiness of the individuals; it is the training and experience in emergency situations (or life generally), that allow these individuals more correctly to interpret what they are seeing, and more accurately to estimate the odds of who has done what. Here, the trained professional clearly would deliver superior results to the layman; but remember that the layman already on the scene the entire time, has far more information and observations than police officers who respond – and historically, when you review all the situations requiring drastic emergency response (e.g. murders), the active shooter or similar crime spree scenarios are the ones where the regular police response commonly lags the opportunities for citizen response on the scene. A similarly disadvantaged class of scenarios is common robbery, where the resisting citizen can neutralize the robber far more effectively than a police officer who has to pick up the chase (the hard part) and give chase. By contrast, hostage taking and standoffs clearly could benefit from professional training, as do non-witness (or killed/injured witness) situations.
Of course, the trained professional’s average suppression response likely will improve on that of the layman.
Therefore the question of the most appropriate response to a particular situation consists of:
– The relative reliability of each responder, for example to vetting
– The informational advantage of direct eyewitness vs. trained response
– The relative means and skill advantage of the actual suppression action
These factors are trivialized when the crime proceeds over a long period of time without additional violence or destruction, and they are maximized when it proceeds over a relatively short period of time with additional violent acts. Therefore we consider that due process would be maximized by professional response when the situation is relatively less urgent, or where the suspect accepts detention pending response, and focus instead on the maximum situations.
To the point of vetting: there are standards applied on the intake, and in order to take away the power of due process from some set of citizens, they implicitly define the criminal justice hierarchy. Someone who can pass vetting is a reliable bystander.
The next justification for a professional response is misinterpreting what has happened. The classes of situations with differing error rates are:
– Direct eyewitness (e.g. getting robbed or raped)
– Exceedingly unlikely alternatives (e.g. someone firing gunshots in a bathroom and then emerging with a gun)
– Shady business (someone making a brush pass on the corner, unlikely affluence, bloody hands)
– Other eyewitness information (exonerating or incriminating) such as seeing someone on the night of the incident
In no case will the professional response ever exceed the reliability of direct eyewitness. The issue with accepting all such reports is the possibility of false reporting as from the perspective of the observer (e.g. false reports of rape), not with the inherent capability of the reporting individual.
Professional response may exceed the layman in the case of exceedingly unlikely alternatives, but by definition, it can’t be by much or that often, since the alternatives are exceedingly unlikely.
The shady business is where neither a professional or a layman is likely to make a reliable judgment based solely on the first impression. Further investigation is needed (for example, is the person fleeing the criminal, or one of the bystanders?)
Being that the primary issue is about whether the suspect will commit further crimes/accepts detention, the question of the correct response relates to the ability of the layman (or professional) to ascertain this, without giving up the ability to stop crime sprees. The first question is whether a detention challenge will be honored; that is, if you scream STOP AND GET ON THE GROUND, will the suspect obey enough that you can dial back the intensity of your response, and wait for professional response. The question that precedes that is, can you survive long enough to issue that challenge, or do you need to stop the suspect with whatever means you have.
In the direct eyewitness case of a personal attack, the assailant clearly isn’t obeying, so any use of suppression by a reliable bystander is acceptable.
In the exceedingly unlikely case, the matter is unclear both as to the threat to bystanders and the probability of suspect compliance with detention. It’s unlikely that a crime hasn’t been committed, so there’s a clear justification for such detention, and on average, everyone is in danger from the suspect. Therefore the bystander should issue the challenge and prepare for self-defense and pursuit as necessary.
In the shady business case, the possibility of crime clearly merits further investigation, but a violent response would apply violence in situations that aren’t criminal in a significant percentage (well over 1%) of cases. Moreover, there usually isn’t evidence of active assaults or property destruction that couldn’t be remediated through later compensation. Therefore the appropriate response should be pursuit without confrontation and the simultaneous summons of professional response.
The related question is to what extent the inferiority of the suppressive response by the particular bystander should limit the actions taken. In these cases, the suppressive response is going to consist of one or more of:
– Lethal force like handguns, knives
– Typically non-lethal force like fists, tackles, pepper sprays
– The pursuit capabilities and means to avoid or defend against suspect actions (bulletproof vests, cars)
and the attendant matters of skill in the use of each.
Obviously not having a gun is not going to help you against a armed assailant. A slight woman has no chance of success without some sort of armament against the average male. So in these cases, the option of suppression effectively has been eliminated – hence the question of due process in the matter, while quite important to the overall policing approach in the city, does not apply in these situations. That is, being the small, unarmed woman does not disqualify you in all ways, but limits your response at the time without proper equipment.
What would be the qualifying level of skill for the use of a firearm? Not much. Even brandishing and aiming the gun will stop people. Kids kill each other all the time with no training. So if you need to fire it (vs. e.g. wielding in pursuit), it’s advantageous to have skill, but at the close to point blank ranges usually implicated in said use, it’s not a big deal.
The matter of less-lethal (e.g. knives) and non-lethal (fists, pepper spray) is a much more difficult situation, as the suspect certainly could fight through or overpower you. This situation also significantly applies to professional responders; that’s why they always try to call for backup, and don’t want to initiate the confrontation if they can stall. In that regard, you wouldn’t initiate violent action unless you (or someone else) were getting closely approached (or attacked) by the suspect and the suspect were disobeying commands.
Hence, in the actual events of urgent situations (vs. ones where you can stall), there are very few differences between the layman response and the professional in the correct course of action (though not the effectiveness of that course of action, especially in distance shootouts and close quarter combat). Hence the deciding matter about due process in urgent situations is about whether the individual is trustworthy, e.g. via vetting.
The most basic question about vetting is to what extent the conformance to the qualities being vetted, predicts the willingness to lie/frame, allow suspects to go free, etc. The particular issue related to bystanders is: the vast majority of them abide by the law most of the time (so they have no verified instances of breaking the law, i.e. convictions) and a large number of them clearly would pass the character portion of the police officer qualifications, especially because the police officers drink alcohol, have promiscuous sex, etc. like the majority of the general population. Moreover, the pay for police officers isn’t similar to what equally hard-working individuals can make in other professions, and the conditions of work certainly aren’t similar to what most equally hard-working individuals would experience. Consequently, the question of whether a police officer’s election, is a means of vetting (i.e. is your heart set on being a police officer and helping people), becomes ambiguous; the officer could have signed up because:
– They really do think police work is the profession that will make them happiest
– They do think police work is the most important thing they can do for which they are qualified
– They are out of money and it’s the best opportunity they can grab at the time
– They can’t get one of those better paying and easier jobs (because they can’t or won’t relocate, because they don’t want to or can’t study for the better jobs, no social networks, etc.)
and conversely, if it were better paid:
– Because it’s the best paying job for which you are qualified, not necessarily the one you had your heart set on
There’s no obvious way to interpret the choice of profession as a signal.
Furthermore, since we need people to do productive work and not only loss-avoidance, there is a clear surplus of individuals who would pass vetting, who can’t be paid and trained as such. Saying “I can’t/won’t pay you, and we need you to do another important job” not only doesn’t justify deeming a bystander unreliable: it explicitly acknowledges their equal merit in those basic vetted qualities. Likewise, frail women, old men, physically disabled, etc. could pass vetting, but would not qualify to be professional police officers because of the advantages of physical strength. However, if the question is, for example, about firing a gun in dire situations, the physical strength element is not so relevant, as the situation for employing physical restraint via overwhelming muscle is not the primary response in such dire situations.
Therefore the matter of due process in the urgent situations is something that can, and should, be enforced by ordinary citizens in the normal course of events.
The next level of due process already got treated to some basic level previously: you wait out the suspect, arrest them using the minimum amount of force that keeps the officers safe, and then fully investigate the crime scene.
But we know that the crime scene investigation can take months; the processing of evidence might take weeks if testing is needed, while the following of leads can drag on the timelines. All the while, we have a suspect that either needs to be freed from custody, or to be confined to jail awaiting a final trial and verdict.
The situation of the suspect in these instances should follow according to the means by which they ended up arrested, the threat to the public, and the likelihood to flee:
– Sufficient evidence already has been gathered to obtain the conviction
– Direct reliable eyewitness, circumstantial in line, and physical evidence already likely confirms
– Not directly witnessed, but circumstantial and physical evidence clearly pointing the finger, and investigation likely to confirm
– Have they committed a serious assault or worse, or are they likely to prey on members of the public (vs. e.g. a white collar fraud)
– Do they have a history of running from the law
The history of running from the law is sufficient to justify the continued detention – although with the obvious caveat that a sort of trial has to happen quickly.
If the crimes of which the suspect is accused (or prior criminal history) suggest the potential for further harm (e.g. domestic violence) or generally apply to the public, then the detention has to occur – but a sort of trial has to happen quickly, and the compensation/job-holding has to follow suit (you could argue it is not justified for the individuals with prior history of nonappearance at court).
With sufficient evidence to obtain the conviction, it makes no sense to bail – but then the trial has to happen quickly, and the compensation/job-holding has to follow suit.
Direct reliable eyewitness would qualify for longer-term detention if there is the potential for further harm, but would not qualify if there isn’t. In this case, the restraint/detention would be sufficient and the suspect’s compliance indicates the low likelihood of re-offense.
Similarly, the non-direct case likely would confirm, but that’s not 100% – you’re arresting someone because they are the overwhelming person of interest and you are scared of future threats/destruction of evidence, not because you have anyone who claims to know for sure. So you know going in that you need the compensation/job-holding, and you have to finish the investigation (not necessarily the trial, depending on how it goes) ASAP, because it’s costing you and the suspect every day that it drags on.
All of this establishes a basic progression of the due process when a suspect is arrested:
– The suspect likely (but not clearly) poses a threat, and therefore the police have to expend all feasible resources urgently to confirm or deny that, and we must consider that sometimes we will have to pay them for their inconvenience
– The suspect most likely is guilty, but the investigation is not complete, therefore a preliminary trial must occur to justify the continued detention pending the completion of the investigation
– The suspect clearly is guilty, therefore the preliminary trial is basically a due process formality which allows the preparation of the best possible defense, so that the processing of these cases are routine priorities (except when the sentence is short and so the prosecution would be the punishment unless you hold the trial imminently)
So to satisfy the needs for due process, there are 4 main features:
– The habeas corpus/checking of charges and identity/case files and other material are in order
– The determination of the correct type of pre-trial detention, if any
– A detention trial, where the defense’s case has not fully been developed, and so it may be overturned in the full trial – but the prosecution evidence developed clearly is sufficient to convict, so instead of holding the defendant in jail for what could be months on essentially unchecked summary judgement, you put on an “as-is” trial and free defendants with weak cases against them
– The full trial where prosecution and defense cases completely have been developed, where you could expect a 1% or less error rate
Note that in the 48-states systems, typically there is a grand jury that determines whether the prosecution can bring charges, but there’s no defense attorney present, nor is the suspect in the trial, therefore it is a weak means of preventing people from being detained for months who later will be determined innocent in the full trial. Further, the detention decision gets made based on a single judge’s ruling – which is OK for a habeas/initial detention decision, but not for any significant periods of time in jail.
Bringing back the original issues about citizen or professional enforcement in the field, you get to a progression that looks like:
– Instant death or beating at the scene of the crime, for serious violence
– Detention and pursuit as indicated, consistent with protecting those enforcing the law
– Arrest when either the suspect is obviously guilty or likely poses a threat
– Habeas hearings to correct any gross errors
– Detention determination according to the evidence gathered/witnesses to check the law enforcement assessment
– Detention trial to put away the obviously guilty and free the not so obviously guilty
– Full trial to make the correct decision when all facts that will be available, are available
– Compensation and correction for wrong law enforcement decisions