2 - Errors of Due Process

Summary

… nor shall any person … be deprived of life, liberty, or property, without due process of law …

— Fifth Amendment to the U.S. Constitution (1791)

Introduction

The United States was founded on the principle that the people should be protected against an intrusive government. The Bill of Rights delineates those protections: the people will not be subjected to unreasonable searches and seizures, unwarranted interrogations, punishment without right to trial by a jury of peers, and other such invasions of life, liberty, or property. These distinctions were unprecedented as founding principles of governance when they were drafted and signed; the framers were sensitive to such intrusions after having freed themselves, at considerable expense, from more than a century of imperial rule. The United States is unique among common-law democracies for incorporating principles of due process explicitly in its constitution, overriding all legislation (Kiralfy, 1974). The basic protections, and the principles on which they were grounded, have survived for well over 200 years.

This chapter examines a class of fundamental problems that such protections aim to prevent: the unwarranted harassment, detention or conviction, or excessive sanctioning of people suspected of crime. The provisions are designed to protect the innocent, but they are designed to prevent excessive intrusions against everyone, including those who violate the law. Following the language of Chapter 1, we shall regard lapses of these protections in individual cases as errors of due process.