1.4: Due Process, Fundamental Fairness and Equal Justice
The American Justice System is founded on the belief that the accused are innocent until proven guilty . To ensure this, the system is founded on the principles of due process,fundamental fairness, and equal justice .
Due Process
Due process and fundamental fairness process are the primary concepts of our American Justice system and are designed to protect the rights of the citizens from the government. We all want to solve crimes, protect the innocent, and punish those who are guilty,but it must be done fairly and justly.
Due process has two main focuses, the first ensures that formal proceedings (such as criminal court proceedings) are carried out regularly and in accordance with established rules and principles. This is called procedural due process . The second portion is a judicial requirement that the laws created cannot contain provisions that result in the unfair, arbitrary, or unreasonable treatment of an individual. This is called also substantive due process .
Due process is found in both the Fifth and Fourteenth Amendments of the Constitution.The Fifth Amendment prescribes that no citizen of the United States will be"deprived of life,liberty or property without due process of law" by the federal government. In 1868, the Fourteenth Amendment uses the same words, called the Due Process Clause, to describe a legal obligation of all states. There are two types of due process, substantive due process and procedural due process.Procedural due process, as the name indicates, focuses on the processes used to try and convict defendants accused of crimes.Substantive due process is the way the courts protect individuals and prevent governmental interference with fundamental rights found in the Constitution.
Learn more about due process of law in this video: Due Process .
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Fundamental Fairness
The fundamental fairness doctrine is the rule that applies the principles of due process to the criminal court process. Fundamental fairness and due process are synonymous (similar). The U.S. Constitution provides citizens protection that the government will not deprive a person of life, liberty, or property without the due process of law.
When drafted and passed, the U.S. Constitution and the Bill of Rights applied only to the federal government. Individual states each had their own guarantees and protections of individuals’ rights found in the stateconstitutions.Since 1868, the Fourteenth Amendment has become an important tool for making states also follow the provisions of the Bill of Rights.It was drafted to enforce the Civil Rights Act passed in 1866 in the post-Civil War states. Section 1 of the Fourteenth Amendment enjoins the states from depriving any person of life, liberty, or property, without due process of law. It prohibits states from adopting any laws that abridge the privileges and immunities of the citizens of the United States and requires that states not deny any person equal protection under the law. U.S. Const. amend. XIV, § 2.The practice of making the states follow provisions of the Bill of Rights is known as incorporation. Over decades, the Supreme Court debated whether the Bill of Rights should be incorporated all together, in one-fell-swoop, called total incorporation, or piece-by-piece, called selective incorporation. The case-by-case, bit-by-bit approach won. In a series of decisions, the Supreme Court has held that the Due Process Clause of the Fourteenth Amendment makes enforceable against the states those provisions of the Bill of Rights that are“implicit in the concept of ordered liberty.” For example, in 1925 the Court recognized that the First Amendment protections of free speech and free press apply to states as well as to the federal government.In the 1960s, the Court selectively incorporated many of the procedural guarantees of the Bill of Rights.The Court also used the Fourteenth Amendment to extend substantive guarantees of the Bill of Rights to the states. Most recently, on February 20th,2019 the Court incorporated the right to be free from excessive fines guarantee found in the Eighth Amendment to the states in Timbs v. Indiana(2019).
The Fourth, Fifth, Sixth, and Eighth Amendments have provisions that govern criminal procedure during the investigative, pretrial, and trial phases. The Eighth Amendment sets limits on the government’s ability to impose certain types of punishments, impose excessive fines,and set excessive bail. The Due Process Clauses of the Fifth and Fourteenth Amendments require that criminal justice procedures be fundamentally fair. The Fourteenth Amendment’s Equal Protection Clause requires that, at a minimum, there be some rational reason for treating people differently. For example, states can pass laws prohibiting minors from purchasing and consuming alcohol because states have a reasonable interest in protecting the health and welfare of their citizens.These amendments added several constraints on Congress. The impact of the Bill of Rights was to place substantial checks on the federal government’s ability to define crimes.
Equal Justice
John Rawls (1921-2002)was a contemporary philosopher who studied theories surrounding justice. His theories are not focused on helping individuals cope with ethical dilemmas; rather they address general concepts that consider how the criminal justice system ought to behave and function in a liberal democracy. It is for this reason that it is important that all law enforcement personnel be aware of Rawls’ theories of justice or at least have a general understanding of the major concepts that he puts forth.
Rawls’ theory is oriented toward liberalism and forms the basis for what law enforcement, and the criminal justice system, should strive for in a pluralistic and liberal society. Borrowing from some concepts of social contract theory , Rawls envisions a society in which the principles of justice are founded in a social contract. However, Rawls identifies problems with the social contract that do not allow fairness and equality to exist among members of society. He therefore proposes a social contract that is negotiated behind a “veil of ignorance.” Here,the negotiating participants have no idea what their race, gender, education, health, sexual orientation, and other characteristics are,so that the social contract is fair. Ultimately, Rawls argues that the primary concern of justice is fairness, and within this paradigm, Rawls identifies two principles:
- “Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others” (Rawls, 2006, p.63). Rawls goes further by allowing each person to engage in activities, as long as he or she does not infringe on the rights of others.
- “Social and economic inequalities are to be arranged so that they are both (a)reasonably expected to be to everyone’s advantage (b) attached to positions and offices open to all...” (Rawls, 2006, p.63). Likewise, everyone should share in the wealth of society,and everyone should receive benefits from the distribution of wealth. Rawls does not argue that everyone should be paid the same, but rather that everyone should have benefited from a fair income and have access to those jobs that pay more.
These principles should be adhered to, according to Rawls, to ensure that disadvantages are neutralized,and everyone receives the same benefits of justice.
Rawls further addresses ethics in the individual. Though this is not the central tenet of his theory, is serves as a general statement of how moral people should behave (Banks, 2013).
Learn more about Equal Justice in this video: Equal Justice .
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Remember the Innocent
It is important to remember that one of the worst things that could happen in the Criminal Court system is that an innocent person is prosecuted for a crime they did not commit.Therefore, the system creates numerous protections to ensure the government does not falsely convict a person.However, with the advent of DNA and other technologies, we are learning that people have been incarcerated (sometimes for decades) for crimes they did not commit.This is why there are processes and procedures which must be followed by law enforcement,district attorney, and defense counsel, as well as judges to minimize the possibility of false convictions.
This course will review these processes and examine the purpose behind each process.