Due process, procedural

Right not to be deprived by government of life, liberty, or property without notice and an opportunity to be heard according to fair procedures.

The Supreme Court recognized that the constitutional right to procedural due process derives historically from the Magna Carta (1215), which prohibited the English monarch from depriving a certain class of subjects of their rights except by lawful judgment of their peers or by the law of the land. When the United States gained its independence, language modeled on the Magna Carta provision was included in some of the state constitutions. Soon after the ratification of the U.S. Constitution, the Fifth AmendmentFifth Amendment was adopted as part of the Bill of Rights. This amendment, applicable to the federal government, provided in part that “no person shall…be deprived of life, liberty, or property, without due process of law.” In 1868 the Fourteenth Amendment formulated the same prohibition with regard to state and, by implication, local governments.

The due process clauses apply to criminal as well as civil procedures. However, because other constitutional protections are triggered in criminal matters by specific provisions of the Fourth, Fifth, Sixth, and Eighth Amendments, the Court has often invoked these more specific constitutional provisions in criminal procedure cases when it is unnecessary to address the more general requirements of the due process clauses.

Basic Principles

The Court ruled, in Collins v. City of Harker Heights[case]Collins v. City of Harker Heights[Collins v. City of Harker Heights] (1992), that due process clauses provide a guarantee of fair procedure in connection with governmental deprivations of life, liberty, or property. In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank[case]Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank[Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank] (1999), it held that procedural due process does not prevent governmental deprivation of life, liberty, or property; it merely prevents such deprivation without due process of law. Furthermore, the governmental deprivation must be deliberate. According to its finding in Daniels v. Williams[case]Daniels v. Williams[Daniels v. Williams] (1986), a civil action against a governmental entity cannot be predicated on a due process theory if the governmental conduct at issue was merely negligent.

The two major components of fair procedure are notice and an opportunity to be heard. A primary purpose of the notice requirement is to ensure that the opportunity for a hearing is meaningful, as the Court determined in West Covina v. Perkins[case]West Covina v. Perkins[West Covina v. Perkins] (1999). In both judicial and quasi-judicial proceedings, the Court determined that due process requires a neutral and detached judge in the first instance in Concrete Pipe and Products of California v. Construction Laborers Pension Trust[case]Concrete Pipe and Products of California v. Construction Laborers Pension Trust[Concrete Pipe and Products of California v. Construction Laborers Pension Trust] (1993). However, where an initial determination is made by a party acting in an enforcement capacity, it found that due process may be satisfied by providing for a neutral adjudicator to conduct a de novo review (complete rehearing) of all factual and legal issues in Marshall v. Jerrico[case]Marshall v. Jerrico[Marshall v. Jerrico] (1980).

The Court often (but not always) evaluates procedural due process issues by considering the three factors brought out in Mathews v. Eldridge[case]Mathews v. Eldridge[Mathews v. Eldridge] (1976): the private interest affected by the official action; the risk of erroneous deprivation of such interest through the procedures used and the probable value, if any, of other procedural safeguards; and the relevant governmental interest.

Criminal Procedure

The Court applied the due process clauses in the criminal law area in cases in which other constitutional provisions do not apply. For example, the Court held that the adjudication of a contested criminal case in a mayor’s court violates due process where the mayor’s executive responsibilities may create a desire to maintain a high flow of revenue from the mayor’s court in Ward v. Village of Monroeville[case]Ward v. Village of Monroeville[Ward v. Village of Monroeville] (1972). It also held that a child in delinquency proceedings must be provided various procedural due process protections in In re Gault[case]Gault, In re[Gault, In re] (1967).

The Court also made two rulings regarding placement in mental institutions. In Vitek V. Jones[case]Vitek V. Jones[Vitek V. Jones] (1980), it held that a convicted felon serving a sentence in prison may not be transferred to a mental institution without appropriate procedures to determine whether he or she is mentally ill, and in Foucha v. Louisiana[case]Foucha v. Louisiana[Foucha v. Louisiana] (1992), it determined that a person found not guilty of a crime by reason of insanity who is accordingly confined in a mental hospital is entitled to constitutionally adequate procedures to establish the grounds for continued confinement when the original basis for the confinement no longer exists.

Other Applications

The Court applied the procedural component of the due process clause in many other contexts. For example, in United States v. James Daniel Good Real Property[case]James Daniel Good Real Property, United States v.[James Daniel Good Real Property, United States v.] (1993), it held that, absent exigent circumstances, due process requires notice and a meaningful opportunity to be heard before the government can seize real property subject to civil forfeiture. In Goldberg v. Kelly[case]Goldberg v. Kelly[Goldberg v. Kelly] (1970), the Court held that welfare recipients could not be deprived of their benefits without procedural due process protections. Similarly, in Memphis Light, Gas and Water Division v. Craft[case]Memphis Light, Gas and Water Division v. Craft[Memphis Light, Gas and Water Division v. Craft] (1978), the Court established federal due process procedures for termination of public utility service to customers in states that have a just cause requirement for such termination.

In Cleveland Board of Education v. Loudermill[case]Cleveland Board of Education v. Loudermill[Cleveland Board of Education v. Loudermill] (1985), the Court determined that tenured classified civil servants were entitled to at least some procedural due process before termination, such as notice of allegations and opportunity to respond, coupled with a full posttermination hearing. However, it found that defamatory statements by governmental officials, in the absence of other governmental action, do not trigger due process analysis in Paul v. Davis[case]Paul v. Davis[Paul v. Davis] (1976).

Further Reading

  • American Bar Association. Due Process Protection for Juveniles in Civil Commitment Proceedings. Chicago: American Bar Association, 1991.
  • Champion, Dean John. The Juvenile Justice System: Delinquency, Processing, and the Law. 4th ed. Upper Saddle River, N.J.: Prentice-Hall, 2003.
  • Cox, Steven M., John J. Conrad, and Jennifer M. Allen. Juvenile Justice: A Guide to Theory and Practice. 5th ed. New York: McGraw Hill, 2003.
  • Decker, John F. Revolution to the Right: Criminal Procedure Jurisprudence During the Burger-Rehnquist Court Era. New York: Garland, 1993.
  • Galligan, Denis J. Due Process and Fair Procedures: A Study of Administrative Procedures. New York: Oxford University Press, 1996.
  • Orth, John V. Due Process of Law: A Brief History. Lawrence: University Press of Kansas, 2003.
  • Roach, Kent. Due Process and Victims’ Rights: The New Law and Politics of Criminal Justice. Toronto: Toronto University Press, 1999.

Due process, substantive

Eighth Amendment

Fifth Amendment

Fourteenth Amendment

Fourth Amendment

Municipal corporations

Property rights

Self-incrimination, immunity against

Sixth Amendment