Panel: Political sides coming together to support better due process

Gun Rights

The concept of due process for criminal defendants has loosely unified opposing ends of the political spectrum to express greater support for that principle contained in the Fifth and 14th Amendments.

Keith DenHollander, head of the Michigan branch of the Washington, D.C.-based Christian Coalition of America, made the observation recently during a panel discussion sponsored by the Coalition for Due Process held at the Lorenzo Cultural Center at Center Campus of Macomb Community College in Clinton Township. The subject was about “due process rights and the need for criminal justice reforms.”

DenHollander said he has become a due-process advocate in the aftermath of January 6 U.S. Capitol riot when some defendants were kept in custody without bail for a period of time. Denial of due process, which often in the past has been fought by those on the liberal side of the political scale, has also struck a nerve for those who lean conservative, he noted.

“There’s been this continual lack of due process,” DenHollander said. “You can pick your subject and you can pick which side of the aisle you want to pick it on. It goes both on the left and the right. ”

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He called the denial of bail for some January 6 defendants as a “glaring example” of those rights being violated.

“You have a right to have a hearing,” he said. “And regardless of how anyone feels about what happened on that day, those people deserve the same due process as everyone else.”

DenHollander, who lives in western Michigan and is active in the Republican Party, said prior to Jan. 6, he held little sympathy for the due process of suspects who were charged with crimes.

“I just thought, ‘oh, they’re all criminals. And if they didn’t do something wrong, this and that, they wouldn’t be in this situation,’” he said. “And then you dig in a little, and then you look at Jan. 6, and then you look at any one of the issues we’ve all looked at over the last four or five years, and you suddenly realize there are people who are being charged who didn’t do the crime, and suddenly it’s impacting our circles. It’s no longer somebody else’s problem. …  It didn’t impact people we knew. We didn’t have somebody we knew within our own personal circle who had an experience with this. And all of a sudden, now it does.”

Over 1,230 people have been charged in the Jan. 6 attacks, and two defendants were acquitted at trial, as of last January, according to an Associated Press report. About 900 people have been convicted, with about 170 of those coming after a trial. Dozens of defendants were held without bail for a time. Several defendants who were freed failed to show up for court and were fugitives.

“We’ve just been sitting on the sidelines, not really paying attention,” he said in apparent reference to consevatives. “And I think now we’re finally starting to wake up. And that’s the goal of this coalition as well, is to try to help us to wake up even more, to realize that this has become an orphan” issue.

That has resulted in “unlikely bedfellows … coming together to work on an issue that in the past they would have fought on.”

Since he got involved in the Christian Coalition 10 years ago, he has noticed more cooperation than the perception, Hollander added.

“At the federal level, at the state level, even at the local level, you start to find that the people you see fighting on TV sit down and have coffee the next morning together and they work things out,” he said. “And there’s great solutions that come out of it because there are a lot of people who just really want good things for our community, but we have differing ideas of how we get there. And so if we can start with a desire for a common outcome, and then we can hash through the ideas we have.”

Concerns about due process in recent years prompted the formation the Coalition for Due Process two years ago, said Tara Rodriguez of the Coalition who introduced the panel to the audience.

The panel appeared to lean conservative. Other panelists were Republican Macomb County Prosecutor Peter Lucido, Oakland University political science Professor David Dulio and Diana Rademacher, communications director for the Justice Action Network, based in Washington, D.C.

Dulio, who served as the moderator, noted at the outset that the concept of due process, similar to concepts such as “justice” and “rule of law … often get thrown around with little to no understanding or definition.”

DenHollander said he believes due process is “everyone getting a fair shake to get the details, to get the information that’s necessary, to process the information.”

Rademacher expressed concern about due process being applied unevenly.

“There’s a fundamental disagreement about what justice really is, and we’re starting to see it applied to people unfairly who we assume are guilty,” she said. “We are starting to see it applied to groups of people who we simply don’t like because they disagree with us and we’re seeing it applied to people who have maybe high profiles who then get vilified, and they ultimately have a trial by the public before they even get into the courtroom.”

DenHollander provided an example of a liberal organization, the American Civil Liberties Union, several years ago helping a Grand Rapids-area farmer who was placing anti-President Obama signs on a parked trailer on his property and was ticketed by the municipality. The farmer went to trial and won his case.

“We have this tendency to discount organizations who may have a different political bent than we do,” he said. “We have to be a little bit more open to looking at information that we can get that comes from sources we may not know as much about because it’s available out there. We just have to be willing to search it and find out the accuracy of it.”

In a different case, the ACLU is also representing the National Rifle Association in its recent arguments in a case in which the NRA accused a former New York state official of pressuring banks and insurers to break ties with the gun-rights group following the Parkland, Fla., high school massacre in 2018, Rademacher said.

“If New York can do this to the NRA, Texas or Florida could use the same tactics against groups advocating immigrants’ rights, the right to abortion, or other vital civil liberties,” said David D. Cole, the legal director of the ACLU, in a statement, according to a media report.

DenHollander mentioned the red flag laws went into effect in February in Michigan, allowing family members, police, mental health professionals, roommates and former dating partners to ask a judge to remove firearms from those they believe pose an imminent threat to themselves or others. The measures were passed last year by the Democratic majority state Legislature and signed by Gov. Gretchen Whitmer.

“We look at things like red flag laws, suddenly we become concerned,” he said. “Well, I’m a little concerned when it’s the other side doing it, but when it’s my side doing it, maybe it’s not so bad.

“I think we’ve got to get away from politicizing our justice system and get down to the brass tacks.”

In an effot to bolster due process, bail reform was proposed last year by State Rep. Stephanie Young, a Detroit Democrat. It would establish a three-tiered system in which in which defendants would be treated based on the severity of the offenses.

“We are advocating for it to receive a hearing and a vote in the House Criminal Justice committee. Unfortunately, that has not occurred yet,” Ann Mullen of the ACLU Michigan said Friday.

Low-income defendants suffer more due to their inability to post bond, Rademacher said.

“What happens is that people who don’t have money are being detained more than people who do have money,” she said. “Because if you’re able to post that $5,000 bond, no big deal, you’re back out with your family in no time. If you’re not able to, you’re going to sit behind bars, you’re probably going to lose your job, and bad things happen.

“There’s a very strong data and evidence out there that if somebody spends even three days in jail pretrial, they’re more likely to be on welfare later, they’re less likely to be paying taxes. And these repercussions happen for years down the road afterwards. It’s a very destabilizing event in a person’s life to spend time in jail. They are also, if they spend too much time in jail, more likely to commit another crime later on.”

“With juveniles in particular, we see if you lock juveniles up and you put them into facilities with other kids, particularly when you take younger juveniles and put them with older juveniles, you’re sending them to crime school.”

Lucido commended the formation several years ago of the Michigan Indigent Defense Commission’s efforts to improve legal representation – due process – for indigent criminal defendants.

“At least the MIDC has said, let’s make it fair, let’s give some money so that there is justice within those courtrooms, because otherwise you’re filling jails with innocent people some days,” he said. “Now, (defense attorneys) can get the individuals to go out and investigate and get the experts that you need to make the system in balance.”

Lucido blamed some lack of due process and concerns over bail on some judges bowing to outside forces such on traditional and social media. He did not name any judges and appeared to be pointing to a national trend.

“Political exertion has created a lot of this problem,” Lucido said. “It’s the fact that the public has put a pressure on the elected officials to go ahead and do the wrong thing because they believe in more of social media and or the papers, televisions than actually understanding. And remember this tonight.”

He called due process “sacred.”

“From the moment we get into the arena called our court system, either civilly or criminally, you have to be able to at least get
your day in court. And we’re not seeing that,” he said.

Bond is “supposed to be to protect the people that are out there in our community, but it’s also to be fundamentally fair and balance the risk of harm to the community versus the individual’s freedoms,” Lucido said. “The most egregious freedom to take away is somebody’s liberty.”

Rademacher said judges too often “err on the side of caution” and fail to use “data and evidence.”

“When it comes down to it, I want myself and my kids to be safe so that we can go out and pursue our potential in our communities. That’s what being American is all about to me,” she said.

Lucido commended the proliferation of specialty courts – such as drug court and veterans court – that focus on treatment over punishment for nonviolent offenders.

“I don’t have a problem locking up somebody who’s a threat to my family or my community. But if they’re drug addicts, they’re drunks, and they have pill popping problems, that is not solving any problem ever. It’s just costing us a lot of money,” he said.

Lucido pointed out when he was a state lawmaker, he fought to improve the due-process rights of those subject to a government civil-forfeiture action in which assets could be frozen without a criminal charge.

“How can you take somebody’s property, sell it off within 21 days if you never even had your day in court to be convicted of a crime? It didn’t make sense,” he said. “It was a money grab for most cities, townships and villages and counties, and at the end of the day, they did not succeed.”

In a lighter, surprising moment, Lucido also used the locally popular slogan coined by his public adversary since he became prosecutor, County Executive Mark Hackel.

Lucido responded to Rademacher, who during a long monologue mentioned, “I am not from Macomb county. I’m sorry. I’m from a different part of Michigan.”

“Make Macomb Your Home,” Lucido interjected, drawing laughter from the crowd and panel.

“I’ve considered it,” he said, and continued speaking.

Oakland County Circuit Judge Michael Warren was scheduled to attend but had to cancel, Rodriquez said.

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