When we hear the phrase “due process,” we often think of fairness, justice, and the right to a fair trial. But in today’s courts, violations of due process are more common than we think, and they carry serious consequences, especially for those from marginalized communities.
Since America’s President is woefully lacking in his basic understanding of constitutional rights and has no idea what due process is, I figured I would take a crack at explaining it.
What Is Due Process?
Due process is a constitutional guarantee found in the Fifth and Fourteenth Amendments of the U.S. Constitution. Combined, they protect individuals from arbitrary denial of life, liberty, or property by the government.
Due process comes in two forms:
- Procedural due process ensures the government follows fair procedures — like giving notice of charges, the right to be heard, and access to a lawyer.
- Substantive due process protects certain fundamental rights from government interference, even if procedural protections are in place.
In short, due process means you cannot be punished without a fair and transparent process.
Or, you shouldn’t be, anyway. The way things are supposed to be are not always reality.
How Lack of Due Process Shows Up in Courtrooms
While due process is a constitutional promise, it’s not always upheld in practice. Here are some real-world ways it breaks down:
1. Disparate Sentencing
Two people convicted of similar crimes may receive wildly different sentences — not because of their actions, but because of their race, zip code, or the judge assigned to their case. This violates the principle that justice should be consistent and impartial.
🔹 Example: A wealthy defendant might get probation for a crime that sends a low-income defendant to prison for years, simply because of the resources available for legal defense or the judge’s discretion. You’ll find a real example of a case I tracked here.
2. Lack of Legal Representation
Defendants who can’t afford a lawyer may be assigned overworked public defenders with little time to prepare. In some cases, defendants waive rights without understanding them, like accepting plea deals under fear or pressure.
This seems to happen the most in counties with overworked contract attorney models rather than dedicated public defender offices.
3. Biased or Closed Hearings
In some courts, especially in low-level misdemeanor or juvenile cases, proceedings can be rushed, informal, or lack transparency. This can mean defendants are denied opportunities to present evidence or challenge witnesses.
Some professionals in the legal field have told me that in Michigan, it is almost better to be charged with a Felony, because you are afforded so many more rights than Misdemeanors.
This phenomenon is captured in Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal by Alexandra Natapoff.
4. Coercive Plea Bargaining
Over 90% of criminal cases end in plea deals; not trials. Many people accept these deals out of fear, not guilt, especially when threatened with longer sentences if they go to trial. This undermines their right to a fair process.
Recent Federal rulings finally recognize that plea bargains rob individuals of not only due process, but the right to a trial.
And It’s Coming from the Top Down
It doesn’t help that the current Presidential Administration is seemingly allergic to due process rights.
Why It Matters
Without due process, courts, and our government in general, simply become conveyor belts for punishment and oppression rather than ensuring truth and justice are pursued.
Violations disproportionately affect:
- Poor communities
- Black and brown defendants
- People with mental health conditions or disabilities
- Youth and non-English speakers
These patterns contribute to mass incarceration, recidivism, and community distrust in the justice system.
What We Can Do
- Court watching: Ordinary citizens can observe courtrooms and report patterns of injustice.
- Policy advocacy: Support laws that limit judicial discretion and require sentencing transparency. If you’re in Michigan, check out Citizens for Prison Reform.
- Legal empowerment: Educate people about their rights before they’re in crisis.
- Push for independent oversight: Especially in counties with histories of abuse, oversight commissions can track whether due process is actually being honored.
Wrapping Up
Due process is not a luxury.
It’s a legal right.
When it’s denied, the entire justice system becomes a facade. And perhaps that’s the point? To demonstrate exactly what it’s always been.
A truly fair court system must not only guarantee due process on paper but enforce it in every courtroom, for every person, every time.
