Due Process

In the United States, the justice system is expected to be fair. But what does “fairness” mean? Because it can mean different things to different people, and that meaning can change over time, it is not easy to come up with a definition of fairness that fits all occasions and will be interpreted the same way by all who are asked to comment on it. The same may be said for the very important words due process, which are often heard in reference to the American system of justice. These words affect all Americans in one way or another, and they have had a profound effect on society, particularly in the area of criminal justice.

The words due process are found in two important amendments to the U.S. Constitution: the Fifth Amendment and the Fourteenth Amendment. The Fifth [Page 587]Amendment, which is a part of the Bill of Rights, stipulates that no person shall be deprived of life, liberty, or property without due process. This has been interpreted to mean that U.S. citizens have certain protections against inappropriate actions by their national government. For example, the government cannot arbitrarily execute or imprison a person, or take a person's home away without just cause.

Through the Fourteenth Amendment, these protections have also been extended to the relationship to state governments. The Fourteenth Amendment, which was adopted as a result of the Civil War, stipulates that no state shall deprive any person of life, liberty, or property without due process of law. It is also an amendment through which most other basic guarantees found in the Bill of Rights have been extended to citizens in their relationship with state governments. The extension of these rights has often been referred to as incorporation. Although full incorporation of the Bill of Rights has not yet taken place, an individual now has constitutional protection against unfair, arbitrary, or capricious actions by the government in state as well as federal courts. Considering the fact that most criminal cases involve state courts, it is obvious that incorporation has had a tremendous effect on the American criminal justice system.