The attack on due process threatens everyone, not just the criminal
In the heat of the protest movement of the late 1960s, student militants at the University of California threatened to disrupt a meeting of the governing Regents. One board member suggested that the dissenters be jailed. The state's governor, Ronald Reagan, also a Regent, tended to agree.
''What about due process?'' asked an onlooker. ''Oh, in normalm circumstances, I believe in due process,'' retorted Mr. Reagan.
Unfortunately, situations that require protection of the individual under the law can't always be considered ''normal.'' In fact, it was crisis or abnormal conditions in recent decades - during World War II, the McCarthy era, and Watergate - that gave due process its most formidable challenges.
During the 1940s, government officials, in the name of national security, interned American citizens of Japanese descent in relocation camps without giving them the benefit of the judicial process. Ten years later, federal workers suspected of communist leanings were fired without a hearing. Often they were't even aware of the charges against them. And Watergate and its aftermath brought illegal wiretaps, break-ins, and government ''hit'' lists. These were all violations of constitutional rights, including due process.
Due process is being attacked today not because it gets in the way of national security but because its critics feel that it has gone too far in protecting the criminal and the accused and not far enough in defending the victim or bystander.
Media dramatizations hammer home this message. In a current movie, ''The Star Chamber,'' a group of judges takes matters into its own hands after determining that ''something's gone wrong with the law.'' Their complaint: Too many criminals are set free on courtroom technicalities. The play ''Outrage,'' which ran briefly at Washington's Kennedy Center, focused on the trial of a man who shot the confessed rapist and murderer of his daughter. The accused had been freed when trial evidence was thrown out, due to improper police procedures.
And, recently, CBS's popular news magazine ''60 Minutes'' ran a segment on two admitted killers of a minister in California who went free when their confessions were excluded as evidence after the judge determined that they were obtained under duress. Both suspects were released. All these cases relate directly or indirectly to the so-called ''exclusionary rule'' - a procedure which US courts have followed for 70 years and which guarantees defendants certain rights in criminal cases.
This term the US Supreme Court will consider modifying these rights by adopting a ''good faith'' exception to this law, allowing even improperly gathered evidence or testimony into the courts if it's determined that law enforcement people didn't deliberatelym curtail individual rights or knowinglym deprive the defendant of due process.
What is this concept of law which is held so precious by most of the legal community and many others? And does it benefit only criminals and those accused of crime?
Due process, which dates back to the 13th century, is rooted in the principles of the Magna Carta. Now at the heart of the American judicial system, it's embodied in the Constitution's Fifth and Fourteenth Amendments. The concept mandates that no person shall ''be deprived of life, liberty, or property, without due process of law.''
Who is entitled to these protections? Basically everyone who comes under US law: including students, aliens, Indians, military personnel, and prisoners.
And just how does it work? Basically, if the government decides to take civil or criminal action against an individual, it must provide that individual notice of the proceedings and an opportunity to prepare for them; the chance to be heard and to combat accusations; and a fair hearing before an impartial jury.
Recent due-process cases outside the criminal justice area involved the right of students facing possible school suspension to a hearing before school authorities; the right of a government worker to challenge dismissal; the right of tenants in public housing to receive sufficient notice before eviction; and the right of patients in nursing homes to oppose transfer to other facilities.
Due process is woven into the fabric of a free society, insist many constitutional scholars. Curtailing it for one segment, such as those accused or convicted of crimes, could weaken protections for others. The late Earl Warren, chief justice of the United States, placed due process on the same level with freedom of speech, press, and lawful assembly.