Imagine this scenario is about you. The police think you have committed a crime. They put the handcuffs on you and put you in the back of the police car. Your freedom is already gone. You are physically under control of the government. This is the government acting in one of the most powerful ways that it can. It is a very scary situation.
Hollywood loves to tell the story of the innocent person falsely accused of a crime that needs to go on the run to prove their innocence. I’ve enjoyed films like The Fugitive or Double Jeopardy, but if you ever do find yourself accused of a crime, please know that you likely don’t need to take such extreme measures. This is because you live in a country that has “due process.”
So, what is “due process” and where does it come from?
When King John was cajoled into signing the Magna Carta in 1215 A.D., he agreed that he would be limited from doing some things to “free men” such as imprisoning them or taking their property “except by the lawful judgment of his peers or by the law of the land.” The term “free men” basically refers to the nobles of that time, so the limits that King John was agreeing to did not apply to everyone in 1215. However, it was the start of the concept that the government must follow a fair procedure before it denies natural rights like life, liberty or property, to an individual.
When the first Congress of the United States was creating a bill of rights, due process found a home in the Fifth Amendment, which states, “No person shall be . . . deprived of life, liberty, or property, without due process of law.” Later, after the Civil War, the 14th Amendment was added to require states to also comply with “due process.”
When I teach this concept to my Civics classes, I draw a big scary monster to represent the government on one side of my white board and a tiny figure to represent the accused on the other. I explain that in a one-on-one battle, with no rules, the government is more powerful than the individual person and would win every time. I then draw in three large walls standing between the government and the individual. These are the walls of “due process.”
The first wall is for pretrial rights. When the police are investigating they have to do so in a fair way. For example, when the police want to search for evidence, they must have probable cause (a legitimate reason to believe that you committed a crime) and the scope of any search is limited by a warrant. This is a “due process” protection because it means that the police must obtain evidence against a person in a fair way.
At trial, there is another “wall” that has all sorts of protections for the accused, such as the right to have a lawyer, the right to challenge witnesses against you and probably the most important, which is the right to a jury. A jury means that the government cannot find you guilty of a crime on its own; other people must make the determination. This is a strong limit on government power because the government must get permission from other people before harming your liberty.
The final wall is in the sentencing phase. If you are convicted of a crime, the Eighth Amendment says that punishment must be reasonable.
These three walls of “due process” give you the ability to push back against the government’s power and have a chance to prove your innocence.
It is important to note that “due process” in theory is not always what it looks like in practice. There are problems with inequality, as some are given access to “dream team” lawyers and unlimited resources to build a defense, while others are given an overworked public defender. For these reasons and others, we don’t always get the correct result. The Innocence Project estimates that between 2.3% and 5% of people in prison are innocent. Of course, there are also times when a guilty defendant is able to exploit “due process” procedures and escape punishment.
While our delivery of “due process” is far from perfect, I still believe it is one of the most important concepts for any free society.
There is another movie that I think of when I consider “due process” (and it is one of my all time favorites). My Cousin Vinny has amazing performances by Joe Pesci and Marisa Tomei, but I think the reason I love it so much is that the real hero of the movie is “due process.” The judge, played so well by Fred Gwynne, is a stickler for “procedure.” Vinny doesn’t have to go outside the system, he needs to work within it and use the tools of “due process” (such as his incredible cross examinations of witnesses) to save his cousin from a wrongful murder charge.
I believe that today we are much more My Cousin Vinny and much less The Fugitive than when the idea of “due process” was born over 800 years ago. We should be thankful that we have “due process” and continue to work to better the system.
(Dan Marcus teaches Civics at John Stark Regional High School. He lives in Concord.)