Due process of law

SIGNIFICANCE: Due process of law is a safeguard of both private and public rights against unfairness.

The concept of due process originated in the Magna Carta (1215), by which English nobles limited the authority of the king. The document required the king and his agents to respect the "legal judgment of his peers" and "the law of the land." Over time, the ideas of that charter of liberties protecting the public against the government’s arbitrary and random acts came to be represented in the phrase "due process of the law."

Essentially, the Anglo-American tradition of due process requires a fair hearing for persons charged with an offense and a decent opportunity to defend themselves. This is one of the major foundations of the American tradition of personal liberty. It is most highly developed in the oldest form of public action, the criminal prosecution.

Today, due process in the United States partially depends on written guarantees of the Constitution. The Fifth Amendment to the US Constitution applies to the federal government and provides that "No person shall . . . be deprived of life, liberty, or property, without due process of law." The Fourteenth Amendment, with similar language, constrains the states. Many legal decisions determining both procedural and substantive rights—especially in criminal justice cases—arise from these two amendments. In criminal law, interests of "liberty" would include freedom from incarceration and a parolee’s interest in staying on parole. Other constitutional amendments, from the Fourth through the Eighth, provide additional substance to due process.

Due process also depends on American values of fairness. The Constitution does not specify certain standards in criminal justice, such as the requirement that guilt be proved beyond a reasonable doubt, that the accused be presumed innocent until proved guilty, or that the burden of proof rests on the prosecution. Nevertheless, such standards are part of American custom dating back to the early years of the republic and are integral to the concept of due process. As Justice Louis Brandeis described it, procedural “fundamentals do not change; centuries of thought have established standards.”

Obviously, due process cannot be fully defined in a neat catchall rule. Perhaps Judge Learned Hand expressed it best when he stated that it embodies the English sporting sense of fair play. In the language of Justice Oliver Wendell Holmes, state administration of criminal law offends due process "if it makes you vomit."

Historically, the US Supreme Court has interpreted due process in two distinct categories: substantive and procedural. Substantive due process is concerned with limitations on the power or authority of government to abridge any person’s life, liberty, or property interests. The body of the Constitution and the Bill of Rights contain numerous limitations on the power of government to interfere with individual rights. Substantive due process is used to invalidate government actions interfering with individual freedoms in such areas as abortion, marriage, procreation, and interstate travel when no more specific constitutional ground can be found.

Procedural Due Process

Procedural due process is concerned with fair procedure when the government is a party in a case where an individual has been deprived of a recognized liberty or property interest. The Supreme Court, as guardian of the criminal justice systems, has provided general guidelines rather than precise delineations of due process. In each case the court asks whether the challenged practice or policy violates "a fundamental principle of liberty and justice which inheres in the very idea of a free government and is the inalienable right of a citizen of such government." The Supreme Court has held that, at a minimum, due process means that an accused must be given notice of a charge and adequate opportunity to appear and be heard in his or her own defense. Criminal defendants have a right to a fair and public trial conducted in a competent manner and a right to an impartial jury. Laws must be written so that a reasonable person can understand what constitutes criminal behavior.

The Bill of Rights requires the federal government to observe explicit criminal procedure standards. The Fourth Amendment protects people from unreasonable searches and seizures and describes the requirements for a search warrant. In addition to protecting the right to "due process of the law," the Fifth Amendment requires indictment by grand jury and protects defendants from double jeopardy and from being required to testify against themselves. The Sixth Amendment provides the accused with the right to a speedy and fair trial by an impartial jury; the right to be confronted by the witnesses against them and the right to cross-examine such witnesses; the right of compulsory processes for obtaining witnesses in their favor; and the right to counsel. The Eighth Amendment prohibits excessive bails and fines and protects the guilty from cruel and unusual punishments.

Although Bill of Rights protections were enforced against the federal government, state criminal law and procedures were traditionally afforded greater autonomy under the American system of federalism. With respect to the state courts, the Supreme Court’s authority had historically been less extensive, as it had held in Barron v. Baltimore (1833) that the specific provisions of the Bill of Rights dealing with judicial procedure did not apply to the states. The adoption of the Fourteenth Amendment in 1868, however, required the Supreme Court to reconsider its position in Barron. In Hurtado v. California (1884), the court rejected the claim that the due process clause incorporated the Fifth Amendment requirement of indictment by grand jury to apply to the states. What the Supreme Court did concede was that the due process clause was a general guarantee of fairness, prohibiting the states from interfering with fundamental principles of liberty and justice.

The Incorporation Doctrine

By the 1930s the Supreme Court had found that some provisions of the Bill of Rights had been made applicable to the states by the Fourteenth Amendment due process clause. In Palko v. Connecticut (1937), the court held that the due process clause incorporated those parts of the Bill of Rights "so rooted in the traditions and conscience of our people as to be ranked fundamental" or which are "the very essence of a scheme of ordered liberty." Justice Benjamin N. Cardozo announced this "fundamental fairness doctrine" and found that double jeopardy protections did not meet its requirements. To require more than that would be to put a "straitjacket" on the states and their administration of criminal law according to proponents of the fundamental fairness theory.

During the 1940s four justices of the Supreme Court—Hugo L. Black, William O. Douglas, Frank Murphy, and Wiley B. Rutledge—argued that the due process clause made every provision of the Bill of Rights applicable to the states. These proponents of "total incorporation" were never able to persuade a fifth justice to their view, so the Supreme Court continued to use the fundamental fairness approach in interpreting due process. As explained by justice Felix Frankfurter, the question of whether a state criminal procedure was consistent with the requirements of due process imposed upon the court "an exercise of judgment" upon the whole course of the proceedings in order to ascertain whether they "offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses."

During the 1960s the so-called Warren Court under Chief Justice Earl Warren provided a third view of the appropriate relationship between the Fourteenth Amendment and the Bill of Rights—"selective incorporation." In cases dealing with state criminal prosecutions, the court used selective incorporation that combined aspects of both the fundamental rights and the total incorporation interpretations. The court agreed with proponents of the fundamental fairness approach that the due process clause of the Fourteenth Amendment protects only those rights that are “fundamental to ordered liberty.” Whereas justices following the fundamental fairness concept would incorporate only the particular part of a constitutional guarantee involved in the specific case at hand, proponents of selective incorporation look less to the particulars of the case and instead determine whether the guarantee as a whole should apply to the states—a view similar to that of the total incorporation theory.

Applying this selective incorporation analysis, the Supreme Court in the twenty-first century has held that practically all the criminal procedural guarantees of the Bill of Rights include limitations that are fundamental to state criminal justice systems and that the absence of a particular guarantee denies a defendant due process of law (only the Fifth Amendment requirement of indictment by grand jury and the Eighth Amendment prohibition of excessive fines have not been incorporated to apply to the states). In making these determinations, the Court struggled with the problems of accommodating competing interests—the most important of which was the concept of a minimum national standard of due process competing with the position and authority of the states in maintaining their systems of justice within the structure of federalism. However, the due process clause of the Fourteenth Amendment is not limited to the specific guarantees of the Bill of Rights but also contains protection against practices that may violate values of fundamental fairness without abrogating a specific provision of the Constitution.

Other Elements of Due Process

Among elements of due process enunciated by the Court are: the void-for-vagueness doctrine that requires detailed legislation providing ascertainable standards of guilt; statutory notice providing for definiteness in criminal statutes so that a person may know that something must not be done or, alternatively, that unless something is done criminal liability will result; the entrapment defense that protects people from punishment for illegal conduct induced or encouraged by police agents; the criminal identification process that regulates the conduct of police seeking to identify perpetrators of crimes by lineups or photographic displays; and indictment, which in the states may be by grand jury or information (a document issued by the prosecutor officially charging an individual with criminal violations) but must include adequate notice to defendants of the offenses charged against them and for which they are to be tried.

"Due process" also is used as a title of a social science model of the criminal justice system. The due process, or adversarial, model of criminal court operations emphasizes regularity of procedures, the elimination of mistakes, and prevention of official misconduct while maintaining that an individual accused of criminal conduct must be assumed innocent until proven guilty—even when doing so hinders the efficiency with which the criminal justice system operates. In contrast, the administrative, or crime control, model assumes that the accused is guilty and values efficient and cost-effective disposition of cases.

The large number of criminal due process cases that come before federal and state courts each year indicate the changing nature of the concept and its central position in American criminal justice.

Bibliography

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Amar, Akhil. The Constitution and Criminal Procedure: First Principles. New Haven, Conn.: Yale University Press, 1998. Print.

Crema, Max and Lawrence B. Solum. "The Original Meaning of 'Due Process of Law' in the Fifth Amendment." Virginia Law Review, vol. 108, no. 2, 21 Apr. 2022, virginialawreview.org/articles/the-original-meaning-of-due-process-of-law-in-the-fifth-amendment/. Accessed 26 June 2024.

Curtis, Michael Kent. No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights. Durham, N.C.: Duke University Press, 1990. Print.

Nelson, William E. The Fourteenth Amendment: From Political Principle to Judicial Doctrine. Reprint. Cambridge, Mass.: Harvard University Press, 1995. Print.

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Orth, John V. Due Process of Law: A Brief History. Lawrence: University Press of Kansas, 2003. Print.

Strauss, Peter. "Due Process." Legal Information Institute. Cornell U Law School, 2016. Web. 26 May. 2016.