What is “Due Process” and Why Should We Care?
Recently, ACLU attorneys representing the alleged Venezuelan gang members who were deported in chains to El Salvador by the Trump Administration have asserted that these people were denied due process. But this legal concept seems elusive and hard to define. And we have so much else to worry about. Why care about this?
Trump’s rough deportation of these people occurred without determining whether they were engaged in criminal conduct or were even members of the gang. This shouldn’t surprise us. History shows that it is often the most disfavored or despised members of society whom a mob, or occasionally our government, thinks are unworthy of the basic protections the rest of us take for granted. But, hey, they had tattoos. That must count for something.
Due process is nothing more than following established rules and procedures before depriving someone of life, liberty, or property, and fairness in the penalty when laws are broken. In other words, due process requires the penalty to fit the crime. The source of our right to due process is the Fifth Amendment, which restricts the federal government from peremptorily punishing someone for a crime using irregular procedures or, as in this case, simply no procedures. The Fourteenth Amendment expands these protections to the way state and local governments operate.
Lynching is an example of the complete breakdown of due process. Our history, even into the “civilized” 20th Century, includes hundreds of lynchings of Black Americans. These victims lost their lives to the blood lust of mobs who bypassed the legal system’s method for establishing guilt in the regular, lawful way. As a nation we are still living down that shame.
Keep in mind that due process doesn’t prevent punishment where punishment is appropriate. It merely slows down the process a bit and requires the government to have its facts straight. Just maybe we will discover that the person of interest isn’t really the right one or did something far less serious than we assumed at the beginning.
That might be the case with respect to some of the deportees Trump flew out of the country in defiance of a court order. That court order would have required nothing more than delaying deportation until individualized deportation hearings could be held to get the facts straight. The deportees were already in custody and could not have committed additional crimes, even if they were guilty of earlier ones.
One federal appellate court judge reviewing the situation said that a hearing to determine gang membership was required and that “even Nazis got better treatment under the Alien Enemies Act than has happened here.”
Some will argue – incorrectly – that aliens in this country unlawfully aren’t entitled to the protection of Fifth Amendment due process. The Fifth Amendment says that “No person shall … be deprived of life, liberty, or property, without due process of law.” Notice that these rights are not limited to citizens, or even those non-citizens lawfully here. Aliens physically present in the United States, regardless of their legal status, are regarded as persons guaranteed due process of law.
None of what I have said should be taken as a defense of criminal gangs or aliens behaving in unlawful ways. We should allow law enforcement to do its job. Sometimes imprisonment is the penalty for committing a crime. Sometimes it is deportation. But our legal system, until recently the envy of the world, requires proceeding in deliberate ways that do not make law enforcement itself unlawful.
So, why should we care about due process? Just wait until your child or grandchild is rounded up in a drug bust simply because she hung out with the wrong people and had a tattoo on her arm. Then you’ll understand.
