Most every American is at least vaguely aware that they’re entitled to “due process” if they’re arrested and charged with a crime. Just what does that mean in real life?
The “Due Process Clause” in the Fourteenth Amendment of the U.S. Constitution stipulates that the government can’t deprive “any person of life, liberty, or property, without due process of law.” Since the U.S. Constitution was written, the U.S. Supreme Court (SCOTUS) has further detailed just what these rights are. They fall under two key categories: procedural due process and substantive due process.
What is procedural due process?
At a minimum, SCOTUS ruled that a person accused of a crime must be given:
- Notice: For example, being told why they’re being arrested
- Opportunity to be heard: The right to present a defense
- An impartial tribunal: The right to have their case decided by a judge or jury
These basic requirements are included elsewhere in the Constitution (for example the Fifth Amendment right to remain silent) and in other SCOTUS rulings (such as the Miranda case that gave us the Miranda warning).
To put it simply, a law enforcement officer can’t just take someone from their home, throw them in jail and keep them there indefinitely. We take that for granted, but in some countries, that is a regular occurrence.
What is substantive due process?
Over the years, SCOTUS has determined that Americans have certain “unenumerated” rights not listed specifically in the Constitution. SCOTUS has historically ruled in favor of protecting these unenumerated rights. In the second half of the 20th century and early 21st century, SCOTUS handed down “substantive due process” rulings that prohibited states from outlawing everything from contraception to interracial and same-sex marriage to abortion.
Many Americans have believed that these rights are guaranteed, when in fact they’re not. Another SCOTUS ruling could reverse the original decision, as we saw in recent years with the right to abortion.
It’s crucial for people to be aware of their rights from the moment they encounter a law enforcement officer – and certainly, if they’re arrested and charged with a criminal offense. Getting legal guidance as early as possible can help you protect your rights.