Keeping out of harm’s way? Constitutional due process and state repression

Abstract

The question concerning a state leader's decision to employ repression against domestic audiences extends beyond a binary choice. Leaders act strategically in choosing among a variety of repressive methods through a cost-benefit analysis largely predicated on whether the state will be held responsible for its actions. The divergent costs of repression, particularly physical integrity repression, vary across two dimensions: whether a particular form of repression is custodial or non-custodial, and whether legal means exist to hold leaders accountable. Non-custodial repression, which occurs in contexts outside direct state detention, is harder to link to the state. Furthermore, a state can employ non-custodial repression while maintaining the façade of abiding by constitutional expectations, particularly promises of pre-trial, due process. I use propensity score matching to identify four separate samples in which states vary on the presence or absence of four types of constitutional provisions: pre-trial release, habeas corpus actions, speedy trials, and the right to counsel. The empirical results support the theoretical expectations that the existence of pre-trial, due process provisions in a state's constitution will increase the likelihood of non-custodial repression (disappearances and extrajudicial killings) and decrease the probability of a state employing custodial repression (political imprisonments).