Due Process Rights within the land of the free and home of the brave (Key, Francis Scott, “The Star-Spangled Banner”) are at a historical crossroad. Controversial current events have expanded America's Due Process Rights. Equally as interesting for Due Process Rights, an American Renaissance has begun across all 50 states with an effort to revive traditional American ideas and surpass achievements made throughout classic American history. To say substantive due process is controversial is an understatement. Few legal doctrines have been more contentious in the last century or so in American law. It is also true, and not coincidentally, that this area of law is not just one of the most contentious, but one of the most confused. (95 Notre Dame L. Rev. 1961 (2020). This blog piece seeks not to add to the controversy, but to navigate the mire, and to propose a path across it.
American Sociolegal Background
As American businesses have done their best to survive dire economic conditions by adapting to an unprecedented (un)employment market and supply chain challenges, so has America’s criminal justice system. Like all branches of American government, America’s judicial system mirrors the spirit of its founders and amends itself according to the modern society’s ever changing needs and beliefs. While weak extremist subgroups attempt to demonize law enforcement, undermine law and order, and minimize rule of law values, preserving the legitimacy and quality of American’s judicial branch amidst predicatively programmed social dystopia has proved to be challenging.
Due Process Meaning
Due Process Rights include the quantum amount of legal rights within constitutional law, case law (federal and state), and statutory law (federal and state). American's Due Process Rights established by the federal government in the Fifth Amendment and applied to all 50 state governments through the Fourteenth Amendment.
We The People's Fifth Amendment says to the federal government that no one shall be "deprived of life, liberty or property without due process of law." The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law ("legality") and provide fair procedures. Thus, if an American's life, liberty or property is in question legally, they're afforded all Due Process legal safeguards.
For example, when a Defendant was convicted of Operating While Intoxicated 3rd Offense in Oakland County Circuit Court and the Oakland County Prosecutor's Office moved to have his vehicle be forfeited per Michigan statutory authority, Attorney Joseph Campbell of JC Justice Center filed a Motion in objection to vehicle forfeiture and WON based on Due Process Rights derived from a case called Timbs v Indiana, 139 S. Ct. 682 (2019), where the Indiana Supreme Court held that the Constitution's Eighth Amendment’s excessive fines clause is an incorporated protection applicable to the states under the 14th Amendment’s Due Process Clause.
Due Process from a Historical Perspective
The relationship between Due Process and the American criminal justice system has an odd history. Broadly speaking, Due Process’ history has had three (3) phases. The first phase lasted from the Declaration of Independence (1776) to the passage of the 14th Amendment (1868). The second phase of Due Process extends through the Civil Rights Movement in the1960’s, and the third phase runs to present.
Scope of Criminal Justice System
America’s criminal justice system has an overarching reach on every American’s life, every day. Every time Americans make a phone call, text, earns a dollar, spends a dollar, drives, browses on the internet or social media, etc. they’re operating in an enveloped microcosm of America’s criminal justice system – like a goldfish swimming around completely unaware of the fish tank.
As with all institutions, the test for America’s criminal justice system is time. However, American folkways are changing faster now than ever before. Combining COVID-19’s effects with advents such as smart technology, cryptocurrencies, virtual school and work, social media, electric vehicles, etc. the “American Way” is in flux. As a result, the very fabric of American society, the laws of the land for the land of the free and home of the brave, are also changing.
For example, Gov. Gretchen Whitmer in January 2021 signed into law more than three dozen bills affecting people involved in Michigan's criminal justice system, with changes aimed at expanding alternatives to jail and removing hurdles to opportunities after incarceration.
Twenty of the bills arose from recommendations from the Michigan Joint Task Force on Jail and Pretrial Incarceration. The task force, convened by Whitmer in 2019, was charged with proposing ways to reduce Michigan’s jail population. The group made policy suggestions to lawmakers last January after reviewing data and hearing input from community members across the state.
The reform will affect people's interactions with the justice system from the time of arrest to probation. Policy changes include giving officers more discretion to issue tickets in lieu of arrest, reclassifying many traffic misdemeanors as civil infractions and ending license suspensions for violations that aren't related to dangerous driving. For most misdemeanors and some felonies, state law will include a presumption that judges hand down a sentence other than jail unless they deem that incarceration is necessary.
Inherent Conflicts In America's Checks & Balances System
As taught in K-12 Government or Civics class, there are three branches of government:
Legislative Branch: Creates law.
Examples: U.S. Congress and House of Representatives, State Politicians.
Executive Branch: Enforces law.
Examples: U.S. President, State Governors, Local Mayors, Police.
Judicial Branch: Reviews law.
Examples: Federal and State Court Judges, Prosecutors, Criminal Defense Attorneys.
The criminal justice system, part of America’s judicial branch, has exclusive power of reviewing laws. Like Anthony Bourdain taste testing a master chef, reviewing law is the final step of an interconnected and equally important methodical process of law making.
Serving as master chef, American legislators, the legislative branch, have the power to make laws. Legislators delete undesirable language and outcomes from proposed bills like a chef cutting fat off meat. After legislators reach an agreement and pass laws, the Executive Branch has exclusive power to enforce laws. (See U.S. Const. art. I, art. II, art. III.)
Constitutionally speaking, the executive branch is American government’s middle child. Due to ever changing social relations amongst Americans, the executive branch is placed in a catch-22. The executive branch’s interactions with Americans, “We The people” (See U.S. Const. Preamble) in enforcing our laws creates big drama for media channels, headlines for newspapers, and salient situations that end up being litigated in court, reviewed by the judicial branch’s criminal justice system.
Landmark Due Process Cases
The following events have shifted the doctrine of due process within America’s criminal justice system:
1. Abortion Rights
In Dobbs v. Jackson Women’s Health Organization, United States Supreme Court (SCOTUS) held that the Constitution does not confer a right to abortion; Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey are overruled; the authority to regulate abortion is returned to the people and their elected representatives.
The Dobbs v. Jackson Women’s Health Organization case concerned the constitutionality of a 2018 Mississippi state law that banned most abortion operations after the first 15 weeks of pregnancy. The Mississippi law was based on a model by a Christian legal organization, Alliance Defending Freedom, with the specific intent to provoke a legal battle leading to the overturning of Roe. Jackson Women's Health Organization, Mississippi's only abortion clinic, had sued Thomas E. Dobbs, state health officer with the Mississippi State Department of Health, in March 2018. Lower courts had prevented enforcement of the law with preliminary injunctions. The injunctions were based on the ruling in Planned Parenthood v. Casey, which had prevented states from banning abortion before fetal viability, generally within the first 24 weeks, on the basis that a woman's choice for abortion during that time is protected by the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.
2. Civil Rights
In May 2020, George Floyd was killed by the Minneapolis Police Department. This egregiousness of this event caused unnecessary lines to be drawn between good people in American communities and the good law enforcement agencies that serve them. On July 7, 2022, Former Minneapolis Police Officer Derek Chauvin was sentenced to more than 20 years in prison for depriving George Floyd and a Minor Victim of their Constitutional Rights.
3. COVID-19 Pandemic
Despite 1,044,027+ American deaths due to COVID-19 as of the time this blog was published, America has leadership decided no country, organization, institution, or anyone whatsoever would be held accountable or responsible for creating COVID-19. (WHO Coronavirus (COVID-19) Dashboard). As a result, us Patriots, “We The People”, have taken matters into our own hands by spending our time and money differently.
As ramifications of the Civil Rights Act of 1964 were litigated in Federal and State courts throughout the 1970’s, America’s Post-COVID-19 societal issues will be litigated throughout the remaining 2020’s and 2030’s.
"We The People" must keep a close eye on everything going on within our growing communities, school districts, land developments, Local Governments, State Governments, and Federal Government insofar as possible. Collect facts to determine whether injustices exist, engage in meaningful negotiations, self-purify, and then create direct patriotic action.
Our collective goodwill as “We The People”, is the most powerful force on God’s Green Earth. By doubling down on our fundamental American values, expanding our ability to empathize, and uniting with those who we previously saw as others, we will live in a smarter, stronger, and more loving society than ever.