If you’ve been keeping an eye on the news lately, you’ve probably seen a lot about the importance of “due process.” Serious mistakes – like wrongful imprisonment — can result if someone doesn’t receive due process. It can be long and complicated, but everyone living in this country has a right to expect it if they’re accused of a crime.
Like many aspects of our judicial system, it originated in the U.S. Constitution. Specifically, the “Due Process Clause” in the Fourteenth Amendment says the government can’t deprive “any person of life, liberty, or property, without due process of law.”
In the centuries since the Constitution was written, the U.S. Supreme Court (SCOTUS) has handed down rulings that further specify what it means to have due process. There are two kinds: procedural and substantive.
Procedural due process
SCOTUS has ruled that anyone accused of a crime must receive the following:
- Notice of what offense they’re accused of
- Opportunity to be heard and present a defense
- The right to have their case decided by an “impartial tribunal” (namely, a judge or jury)
Of course, Americans have other rights based in the Constitution, like the right to remain silent and the right to legal representation. An officer can’t just put someone in handcuffs, take them to jail and let them sit there indefinitely.
Substantive due process
Over the years, SCOTUS has also determined that Americans have “unenumerated” rights not specified in the Constitution. For example, within the last century, SCOTUS has made “substantive due process” rulings that prohibited states from outlawing things like contraception, interracial and same-sex marriage.
As we’ve seen, however, those unenumerated rights aren’t guaranteed. They can be (and in at least one case was) overturned by SCOTUS.
The right to legal representation is critical because it helps people protect their rights – even those they may not know they have. That’s why it’s important to get legal guidance as soon as possible if you or a loved one has been arrested and is facing a criminal charge.
