The Deterioration of Due Process in American Society

Imagine walking down the sidewalk on a sunny fall day.  Leaves are crunching beneath your feet, wind is whistling through the tree branches above your head, and squirrels are chasing around after the few remaining acorns on the ground, preparing for the long winter ahead.  Life.  Is.  Good.

Then, out of nowhere, a police car slides up on the road beside you, activating its lights just as it slows to a stop.  Two officers step out of the car as they pull up to the curb.  Neither officer has anything in their hands.  They don't immediately look over in your direction, but you're the only one on the street, so you assume they must want to talk to you.

One of the officers walk in front of you, stopping you from continuing along your path.  The other stands at a 45 degree angle between you and the street, stopping you from going pretty much any other direction, as well.  The officer in front of you asks to see some identification.  You ask the officer what seems to be the problem.  He simply re-requests your identification, declining to give you any information about why he and his partner have stopped you.  You again ask what this is all about, at which point the officer standing behind you walks up to you, grabs your left arm, twists it behind your back, and forces you down to the ground harshly.  As that officer is putting handcuffs on you, the other officer reaches into your back pocket to remove your wallet.  He takes your driver's license out and takes it with him to the squad car to run a check on you as his partner sits on top of your prone body with his right knee digging into your spine.

The officer with your wallet comes back from the cruiser and tells his partner that you don't have any warrants or priors.  His partner doesn't ease up on your back in the least.  You are finally told that you meet the description of someone accused of breaking the law.  What law would that be, you ask?  You tell that that this is ridiculous.  You've never done anything illegal as far as you know.  They don't listen to you.  They don't respond to your question.  They don't have to.  You're told that you will be heading to jail immediately.  Both officers take every opportunity to rough you up on the way over to the car.  They shove you face first into the back seat.  You smash your forehead against the handle on the opposite side door, opening up a gash above your left eye.  The officer tells you they'll fix it once you're secured in your cell.  You're told to stop complaining or they'll give you another injury to make you forget about your eye.  You keep quiet all the way to the station.

Once you arrive at the jail, you're thrown into a cell by yourself.  You aren't given any time frame for how long you can expect to be there.  You ask when you'll get to see a judge, but aren't given an answer.  2 weeks go by.  No answers.  A month.  Nothing.  6 months.  Nothing.  Finally, after sitting in that cell for over 9 months without going in front of a judge, without being allowed to contact an attorney, without ever being given a chance to call your family and let them know where you are, and without ever being told what you are being accused of doing, the cell door is opened and you're released.  The officer tells you to get out of his site and not to do "it" again.

Sounds like a nightmare, right?  Sounds like something out of a dystopian novel by George Orwell or something, right?  The truth is that many countries around the world operate their justice system under rules of law very similar to the scenario above.  Innocent and guilty are words that mean nothing, because there is no determination of facts.  There is no jury of your peers.  There is no impartial judge presiding over your case.  There is simply you versus the government.  Many other countries have a system of due process ostensibly put in place, but the process is really nothing more than a skeleton with no real substance.  The reason this sounds foreign to us as US citizens is that we are afforded Due Process of the Law by the Constitution of our land.  US Due Process requires that we are given notice of any charges brought against us by the government, that we have an opportunity to grieve those charges, and that we are allowed to appeal the outcome of that grievance if our case is not resolved to our satisfaction.  We can't be incarcerated indefinitely without reason.  We have the right to a trial by our peers.  We have the right to face our accuser.  We have the right to be represented by a lawyer to ensure that our rights are upheld correctly.  All of these things are important tenets of our Due Process system in the US.  They are the reason that the above scenario seems impossible.

Or, should I say, it used to seem impossible.  Slowly but surely, our right to Due Process has been chipped away at in this country, leaving us with more protections than most, but less than we used to have.  A lot of people think this deterioration is a recent thing, but it goes back nearly a century.

After the bombing of Pearl Harbor in 1941, Japanese Americans were placed into Internment Camps as a result of an Executive Order by President Roosevelt that allowed local military commanders to designate certain zones "military areas" and gave those commanders the authority to remove any and all persons from those areas as they deemed it necessary.  Over 100,000 Japanese Americans -- American citizens -- were placed into camps as a result of this order.

Another well-known example of the government placing limitations on due process is the Patriot Act.  This is an act commonly attributed/blamed to/on George W. Bush, but it was actually strengthened and extended by Barak Obama, as well.  The Patriot Act significantly reduced the requirements for searches, seizures, wire taps, surveillance, and other covert acts when they are related to suspected terrorist activity.  This act has, in general, been used to justify the detention and surveillance of foreign citizens, but it has also been used as justification for searching the property and business records of US citizens.  Many of the detainees at Guantanamo Bay are being held indefinitely with no chance of trial under the Patriot Act.

The most recent example of such an infringement is the National Defense Authorization Act (NDAA), which was signed into law by President Obama on December 31, 2011.  The NDAA, in a nutshell, allows the US government to detain US citizens indefinitely without the right to due process if there is reason to suspect that the person being detained is involved with forces who oppose the US or their allies.  This has led to conversations among American decision makers as to whether the NDAA would allow them to target US citizens suspected of having ties to terrorist organizations for drone strikes.  This action would essentially eliminate any due process that citizen is guaranteed under the Constitution and allow for their execution without any formal arrest, trial, appeals, or other remedies.  That's a scary, scary path to consider.

The question that we have to consider is not regarding what has already happened, though.  What we really need to be worried about is where all this is heading.  The only way to truly stem the tide of this trend is to sway public opinion.  Based on the general public reaction to some recent smaller-scale incidents involving the concept of due process, it seems like we are a ways away from that reality.  In three such recent incidents, police officers took matters into their own hands by causing the death of people suspected of crimes.  Eric Garner, Mike Brown, and 12-year-old Tamir Rice have all fallen at the hand of police officers under varying circumstances prior to being given an opportunity to defend themselves in the courts.  While there has obviously been a fair amount of blow-back from the public in response to these issues, most of it has been race-related, not due process-related.  Removing the aspect of "white officer kills black man" from these scenarios still leaves us with a troubling number of people who are of the opinion that if you don't want to risk being killed by police, that you should try not committing a crime or resisting arrest in the first place.

When did we, as a nation, start to feel this way?  That is a tough question to answer.  Ultimately, it is a difficult issue to address.  John Adams, the second President of the United States, once wrote that we should aspire to be "a government of laws, not of men."  The idea behind that thought is that we should be governed by the laws as they are on paper as opposed to being governed by arbitrary decisions of individual government officials.  The further we get from Mr. Adams and his ideals, the further we get from that ideology as a whole.

Now, we seem to be all too quick to make excuses for government officials who make arbitrary decisions that affect life, liberty, and property for our citizens.  We make assumptions that favor the government official.  We hear a police officer describe a situation and take his words as the unimpeachable truth.  We listen to yet another prosecuting attorney tell us how the legal process has spoken as yet another grand jury fails to so much as even indict yet another police officer for causing yet another death to an unarmed citizen, and we nod our head in agreement.  We want the system to work, so we find ways to justify saying that it does.

The only way any of this changes is if we make it change.  Stop looking the other way when our government takes away our freedoms in the name of national security.  Stop justifying police killings by attacking the character and the intentions of the deceased.  Stop assuming that what your told by the government is the way things really are.  Until we can do those things and really look critically at our system, things are just going to get worse.

This is not a black vs. white thing.  It is not a liberal vs. conservative thing.  This is a debate that we should all be on the same side for.  We all want our freedom.  Freedom was what this country was founded upon.  Due process is a concept that keeps us free from arbitrary rule, and we are quietly watching it deteriorate around us.

It's time to make some noise.


As always, the content of this website is intended for entertainment purposes, only, and is not intended to be construed as legal advice or legal advertising.  If you are in need of legal advice, please contact a licensed attorney in your jurisdiction for personalized information.