5.6: Due Process

To maintain internal peace — “domestic Tranquility,” in the words of the Preamble to the Constitution — the government must have the ability to enforce its laws and to punish those who violate them. Such power can easily be abused to quash political opposition, as it was prior to the American Revolutionary War in colonial courts beholden to the Crown. To prevent similar abuse, half of the Bill of Rights (Amendments IV through VIII) enshrines certain due process rights which guarantee citizens fair treatment in legal proceedings.

From the Founders’ perspective, due process rights were so vital that some of them made it into the main body of the Constitution. Article I, Section 9 specifies three such rights. First, except in extreme circumstances, citizens have the right of habeas corpus, preventing them from being imprisoned indefinitely without a hearing and a trial. Second, the government cannot issue bills of attainder, which would allow it to declare certain acts illegal and punishable without a trial. Third, the government cannot pass ex post facto laws retroactively banning actions that were legal at the time they were committed.

The Fourth Amendment protects citizens against unlawful searches and seizures of their property. Under most circumstances, the police cannot search a person’s home or belongings without that person’s consent, a warrant issued by a judge authorizing a search, or a very good reason (referred to as “probable cause”) for suspecting illegal activity. To discourage illegal searches and seizures, the Supreme Court ruled in 1914’s Weeks v. United States and 1961’s Mapp v. Ohio that illegally obtained evidence is inadmissible in court.

The Fifth Amendment lists a number of rights possessed by criminal defendants. Among them is the protection against double jeopardy, being tried for the same crime more than once. A defendant who has been found guilty can appeal the verdict, but once he or she has been found not guilty the government doesn’t get a second chance at obtaining a conviction. Also included is the right against self-incrimination, which prevents defendants from being forced to testify against themselves in court. (A defendant who “pleads the Fifth” or “takes the Fifth” invokes this right.) Protection against self-incrimination extends to police interrogation, and the 1966 Supreme Court case Miranda v. Arizona further established that citizens have the right to know about this and other due process rights. This is why police officers read suspects their “Miranda rights,” which famously begin with “You have the right to remain silent....”

Depictions of arrests in film and television often feature police officers reading suspects their Miranda rights the moment they slap on the handcuffs. While this can make for a dramatic scene, it is not a legal necessity. A Miranda warning is only required prior to the interrogation of a suspect. Still, it is common practice to “Mirandize” suspects upon arrest, to ensure that any potentially incriminating statements they make prior to a formal interrogation can be used against them in court.

The Sixth and Seventh amendments secure additional due process rights, such as the rights to a speedy and public trial, to a trial by a jury of one’s peers, and to confront witnesses. The 1963 Supreme Court case Gideon v. Wainwright, brought by a homeless drifter who was convicted of robbing a pool hall without a lawyer to defend him in court, resulted in the incorporation of defendants’ right to counsel: defendants who are unable to afford a lawyer are entitled to a public defender, provided and paid for by the government, to represent them in court.

The Eighth Amendment prohibits excessive bail and fines as well as “cruel and unusual punishment.” In the 1972 case Furman v. Georgia, the Supreme Court based its definition of “cruel and unusual” on the punishment’s severity, degradation of human dignity (as in the case of torture), inconsistent application, societal rejection, and unnecessity. The Furman decision also deemed the death penalty cruel and unusual based on the inconsistency with which it was applied, leading to a nationwide moratorium on executions. States with the death penalty modified their procedures to meet the court’s standards, and in 1976 the court lifted the moratorium in Gregg v. Georgia. Today, the death penalty is legal in 27 states (as depicted in Figure 5.2 below), although three of those states currently have their own moratoria on executions.

Figure 5.2: Executions by state, 1976–2022, with legal status of death penalty as of 2023 (Source: Death Penalty Information Center)