If you follow the news, you’ve probably seen or read more than a few stories about “due process” lately. You may know roughly that it means Americans can’t just be picked up by law enforcement and kept in prison. There’s a whole process with numerous requirements that must be followed from arrest through being charged with a crime to going before a court and to the case’s ultimate resolution.
Just what is due process, where do due process rights come from and to whom do they apply? Let’s explore those questions.
Due process dates back to the founding of our country. The Fourteenth Amendment of the U.S. Constitution states that the government can’t deprive “any person of life, liberty, or property, without due process of law.” The U.S. Supreme Court (SCOTUS) has since provided further detail about due process in various rulings over the years.
Procedural due process
What’s known as procedural due process (as opposed to substantive due process, which involves “unenumerated rights” not addressed in the Constitution) requires that those accused of a crime receive the following:
- Notice of the offense they’re accused of and their rights: This includes being read the Miranda warning.
- Opportunity to be heard: This means they have a right to tell their side of the story to the court
- An impartial tribunal: They have the right to a jury trial.
Some of these rights are also included in the Constitution, like the right to a trial by jury. Other rights, like the right to remain silent and the right against self-incrimination, are also constitutional rights.
Due process for those who aren’t U.S. citizens
Due process rights don’t belong exclusively to people who were born in this country or who have become naturalized U.S. citizens. SCOTUS has ruled that anyone who enters the U.S. legally is “invested with the rights guaranteed by the Constitution to all people within our borders.”
The court later expanded due process rights to address those who entered and/or are living in the U.S. without proper documentation. SCOTUS ruled that someone who isn’t here legally can be deported “only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”
It’s a lot to remember, and it can be especially confusing when public figures say things that contradict the Constitution and court rulings. That’s one reason why it’s crucial to get experienced legal guidance as soon as possible when dealing with law enforcement, and certainly after arrest or detainment.
