Due Process—What Is Going Wrong?

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Due Process�What Is Going Wrong?


A New York State Supreme Court Justice traces the constitutional concept of due process to the English concept of “the law of the land.” (Close 66). Due process as defined by Merriam-Webster, is a judicial requirement stating that enacted laws may not contain provisions that result in the unfair, arbitrary, or unreasonable treatment of an individual (Dictionary 1). A more simple explanation is that due process refers to the rights of any citizen to certain procedural actions prior to the denial of their civil liberties. Due process actions trace back all the way to when kings and queens ruled the people in our nation’s history. Although, then due process may have simply been constituted by shouting of, “Off with his head!” (Close 66). While the term may easily be defined and summarized in a book, the actual concept of due process has changed quite dramatically as generations have progressed. Even with the provision of due process in the Bill of Rights, due process laws were only applied in the federal processes. The states were not required to comply with due process until 1866, when the Fourteenth Amendment was adopted. At that time, people felt that it was necessary for the Constitution to require due process because slaves had been denied any facade of it for such a long time (Close 67). Many due process decisions of the Supreme Court have been issued since that time in our history, but due process has always been and will probably remain a heavily discussed area in law enforcement, courts, schools, legislative processes, and other areas of criminal justice. It seems as though for each individual person, due process means something different. One major problem that has seemingly always surrounded due process is how to extend the rights deserved by the public without interfering with the obligations of a government (Constitutional 1). Many people wonder why issues such as this are being raised now, at this present time in history. Nonetheless, since questions like this do arise daily in our criminal justice system it is important to be familiar with every aspect of due process. Factors involving due process that have sparked controversy in many areas of modern criminal justice include the development and expansion of due process, the superior American tradition, and the responsibility of rescuing due process.


As earlier stated, due process has rapidly evolved, especially over the past one hundred years. While the development and expansion of due process is hard to identify, it has definitely developed into something early Americans would probably refer to as “unheard of” or “unimaginable.” This is due to the differences in the rights that individuals in America have. The law states in the fourteenth amendment, section one that, “…No state shall make or enforce any law which shall abridge the privileges or immunities of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law...” (Administrative 6). A long time ago, this may have meant that before hanging you, putting you in jail, or taking your things, the government had to convince a court that it was okay to do so, but the fourteenth amendment and other amendments included in the Bill of Rights obviously mean something completely different today. Our court system has even taken this idea of benefits before due process of law to such an extreme as the decision in Goldberg v. Kelly, 7 U.S. 54, 4, (170). This case was about Ms. Kelly, who was on welfare, but according to the State of New York, was no longer qualified to receive it. The state stopped Ms. Kelly’s benefits, and told her that if she disagreed with the decision that she had a full right to have a formal court hearing on the facts of her case. In contrast, the Supreme Court said that under the fourteenth amendment, Ms. Kelley’s welfare check qualified as a property right, and that no payments could be suspended until she had received inclusive due process of law. This meant that the state had to give her a full court trial before they discontinued any of her benefits, not after (Close 101). This very constricted decision made no comment about the sufficiency of the course of action itself. It simply referred to the law, and stated that Ms. Kelly was still entitled to her benefits until the courts had established reasonable due process. The decision in this case adds to the notion that conventional theories would never have fabricated such an overflow of rights. While the background of due process laws have remained unchanged, it is difficult amidst all the development and expansion to determine if the purpose is still the same.


Over time, there have actually been two distinct models of the criminal justice process formed�the crime control model and the due process model (Close 8). Herbert Packer is the person who has extensively argued both these models. The crime control model, a more conservative viewpoint, involves people giving up some of their civil and legal rights in order to secure a greater protection against crime. It would apparently make the process of justice run a lot smoother, and as a result of this, due process ideas would be a lot more like our traditional viewpoints. On the other hand, Packer discusses the due process model of justice. This model of justice appears to complicate the ways of our system even more. It stresses that police and other officials have to follow the rules exactly at every stage of the process. If they do not, then exclusion of evidence in a trial court could occur (Close 88). This model, a better description of our processes today, is a perfect model of justice for those criminals hoping to get off on a “technicality.” To put it briefly, the concepts of due process in our system today have expanded so far that there is much room for improvement.





The concept that the current American tradition is superior has also helped spark areas of controversy. America has always been considered the mentor in many areas of government. However, other countries hardly try to model our ideas that an individual’s rights are more important than the betterment of society. In other words, our current due process model is not ideal for all the areas of the world. Previously, it was mentioned that our current justice system favors the due process model in nearly every aspect (Foundations ). This is different from earlier years when our due process ideas’ main goals were for the advancement and security of our population. Earlier laws intended to defend our general public not look out for individual citizens crying because they feel the police could have and should have been a little nicer during interrogations. This has led to the current laws straying from tradition so much that there is more than enough emphasis placed on individual rights and not enough placed on national security. This has recognizably created a big problem. Even as there is no clear evidence that this emphasis is improperly placed on the individuals, there are problems arising that have not been observed before in our history. For example, never before have there been so many incarcerated persons suing or being allowed to sue the state. Today, inmates can sue because they feel that their rights are being violated. Without disregard to constitutional rights, previous inmates were not considered to have the same rights as free individuals (Foundations 1). Although not directly related to due process, this proves that the laws describing the rights of individuals are not complying with successful American tradition. Tradition is clear in that the relationship between fairness and justice should be unbiased (Administrative 6). Continuing to drift from tradition some argue that even trials are unfair at times, and due process is not being delivered in a proper manner. Tradition states that as long as there is a hearing, whether short or lengthy, and no rights are removed before the verdict is given then due process has been carried out successfully. Tradition even goes as far as to say that it is not the public’s job to determine if due process was rightfully awarded. It is believed that the justice system was created to determine that itself. Our system of checks and balances is responsible for making certain that states do not remove those guaranteed rights before a judgment is made. All the areas of disagreement surrounding American traditional due process are needless in deciding that continuing with our current status would only be the downfall of our government (Close 104). It is an obligation of our government to go forth with our constitutional beliefs that crime control is more important than individuals’ rights�at least that is the way tradition has worked successfully in past experiences.


Rescuing due process is also an intense topic of discussion. Since several people believe that America has mistakenly made decisions for the worse, it is important to try to figure out the best problem solving strategy that is fitting for our government. Too many lawyers and judges are grasping for theoretical versions of violations of person’s rights. They are forgetting that those rights are not more important than the security of the nation. Many lawyers are even looking daily for defendants they can represent in technicality cases (Close 88). While there is such a thing as a crime control model without limitations, too many people think that they have more rights than what the constitution promises. Unfortunately, the courts have been making decisions that support the ideas of expanding individual rights. Of course people should be concerned with ideas like police brutality and improper seizure of evidence, but if taken out of perspective, certain individuals will begin to think that no one ever receives proper due process. Some experiments are being performed in varied situations and settings, but it is incredibly difficult to pinpoint exactly where the government went wrong. In all probability, people everywhere are concerned with the existing system involving due process and other areas of criminal justice, but no one has a sure answer. Rescuing due process is a complicated and confusing concept, but it is our governments duty to intervene and preserve our legal heritage (Administrative 6). One quick and simple system that has been addressed can be described as increasing access to due process while decreasing its burden on government agencies. This system involves materially increasing the chances that every individual case can be fairly and accurately decided, preserving a simple record of evidence and judgment, reducing the cost in time and money to government agencies for the conduct of due process hearings, and providing a standard of uniformity and consistency (Close 108). All of these things have been lacking in the past decades. While some think that a proposal such as this may sound out of reach, some type of new all-inclusive approach to due process must be enacted soon. The attempts of our current legal system are proving to be more unsuccessful as time goes on. While this system has served our nation fully, it is evident some changes need to be made Hopefully, these changes will be able to speedily rescue our current ways of


delivering due process (Close 108).


For over two hundred years, the United States of America has been a dominant force among the powers of earth. Life, liberty, and the pursuit of happiness are rights given by God, and secured under the Constitution of the United States. Even though every citizen should know and understand the Constitution, there is a widespread misunderstanding of due process, as defined by Bill of Rights. It is a responsibility of our country to provide a reminder of our heritage and the legal principles on which our country was based. It is also a responsibility of our country to see that our nation is governed in a manner well pleasing to our forefathers (Administrative 4). When it comes to due process, we have undoubtedly failed at maintaining this heritage. When there is any doubt that things in our legal system are working efficiently, everyday practices need to be examined thoroughly.


Concluding, it is comprehensible that our system of due process has expanded throughout the years. It is also comprehensible that due process has become a mockery to America’s tradition and heritage, and desperately needs to be rescued. Although, it may be another decade before anything is done to change these problems, a transformation is a necessity. Having a strong belief in every person’s right to life, liberty, and property with due process of law can be shared with our founding fathers, but abusing this idea will continue to lead to our legal system’s demise.





Works Cited


Administrative Office of Courts. Our Legal Heritage. Montgomery, AL Public Information Office., 001.


Close, Daryl, and Nicholas Meier. Morality in Criminal Justice An Introduction to Ethics. Belmont, CA Wadsworth Publishing Co., 15.


“Constitutional Topic Due Process.” The United States Constitution Online. 15-00. Steve Mount. Mar 00. http//www.usconstitution.net/consttop_duep.html.


Dictionary. Merriam-Webster Dictionary Online. 15-00. Merriam-Webster. Mar. 00. http//www.m-w.com/home.htm .


Goldberg v. Kelly, 7 U.S. 54 (170).


“The Foundations of Americanism.” Common Sense Americanism. 1-00. Charterhouse. Mar. 00. http//www.csamerican.com/fdns.asp.





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