Definition

The rules governing the mechanisms, under which crimes are investigated, prosecuted, adjudicated, and punished. It includes the protection of accused persons' constitutional rights.

Substantive Due Process

Substantive due process refers to the content or subject matter of a law. It protects people against unreasonable, arbitrary, or capricious laws or acts of government. An example is the void-for-vagueness doctrine. In accordance with this doctrine, the Supreme Court has struck down criminal statutes and local ordinances that, for example, made it unlawful to wander the streets late at night without lawful business, to “treat contemptuously the American flag,” and to willfully “obstruct public passages.” In all of these cases, the issue of substantive due process and the void-for-vagueness doctrine came into play because the statutes were neither definite nor certain as to the category of people they referred to or the precise conduct that was forbidden.

A landmark case involving substantive due process occurred in 1927 in the case of Buck v. Bell. Carrie Buck was an 18-year-old “feebleminded” white woman who had been committed to the Virginia State Colony for Epileptics and the Feeble Minded. She was the daughter of a feebleminded mother, and the mother of an illegitimate feebleminded baby. At that time a Virginia statute provided that in certain cases the health of the patient and the welfare of society may be promoted by the sterilization of mental defectives. The superintendent of the state colony where Carrie resided could recommend to its board of directors that the sterilization occur. The sterilization was ordered, and although Carrie may have been mentally deficient, she understood what was about to happen to her and filed an appeal.

The country circuit court as well as the Virginia Supreme Court of Appeals both affirmed the sterilization decree, stating that the sterilization law was a “blessing” for “feebleminded persons” like Carrie Buck. Her lawyers then appealed to the U.S. Supreme Court on the grounds that the substance of the Virginia law represented a denial of due process, that the law was arbitrary, capricious, and unreasonable; and that it was a violation of the Fourteenth Amendment guarantee of equal protection. Chief Justice Oliver Wendell Holmes, Jr., upheld the Virginia statute, making the following comment:

It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. Three generations of imbeciles are enough.

Carrie Buck was ultimately sterilized, but the philosophy of Buck v. Bell has sing been subjected to heavy criticism. Nevertheless, the case illustrates the concept of substantive due process and its inherent problems.

In Skinner v. Oklahoma, which was a test of the constitutionality of Oklahoma’s Habitual Criminal Sterilization Act in 1942, the Supreme Court ruled differently. Arthur Skinner was to be sterilized because he was a three-time habitual offender. (One of the felonies the prosecutor cited was the theft of three chickens.) The Court struck down the sterilization law because it denied both substantive due process and equal protection, since it applied only to felony offenses likely to be committed by poor people while not considering such felonies as embezzlement, political offenses, and other crimes likely to be committed by more affluent defendants. In retrospect, the fact that Skinner was about to be sterilized party because he was a chicken thief points to the unfairness and cruelty inherent in the Oklahoma statute.

An interesting area of law that has raised questions of substantive due process involves the rape shield statutes that exist in most jurisdictions in the United States. Rape shield statutes are laws that protect alleged rape victims from questioning in Court (and depositions) about evidence of past sexual experiences that are not relevant to the case and that be prejudicial…

Procedural Due Process

Neither Buck v. Bell nor Skinner v. Oklahoma had any argument with procedures through which the decision to sterilize had been made. Rather, they were attacking the substance of the laws that demanded sterilization. By contrast, procedural due process is concerned with the notice, hearing, and other procedures that are required before the life, liberty, or property of a person may be taken by the government. In general, procedural due process requires the following:

1. Notice of the proceedings

2. A hearing

3. Opportunity to present a defense

4. An impartial tribunal

5. An atmosphere of fairness

United States v. Valdovinos-Valdovinos represents a good case example involving violation of procedural due process. In fact, the U.S. District Court for the Northern District of California considered the government’s conduct so outrageous that the charges had to be dismissed.

In Valdovinos-Valdovinos, the Immigration and Naturalization Service (INS) was attempting to stem the flow of illegal immigrants from Mexico. Its major method of doing so was a “cold line,” an undercover telephone operation in which agents posing as U.S. employers offered to reimburse immigrants for their smuggling expenses and give them jobs. The INS used the operation to advise Mexican nationals still within Mexico that it was appropriate to violate U.S. law. The district court ruled that the procedure was a violation of due process; the operation amounted to “the generation by police of new crimes merely for the sake of pressing criminal charges.” As such, it constituted entrapment.

Since the 1960s, when questions concerning the procedural rights of criminal defendants came under closer and more frequent scrutiny by the Supreme Court, the due process clauses of the Fifth and Fourteenth Amendments have been clarified and extended. The Court’s decisions have had a significant impact on the processing of defendants and offenders through the criminal justice system-from arrest to trial and from sentencing through corrections…

The Nature and Development of Criminal Law

The list of crimes (in the sense of wrongdoing punished by the community) in early law was extremely short, and included as major offenses witchcraft and incest (Diamond, 1950). For offences such as homicide, wounding, rape, theft, etc, the only remedy in primitive law was self-help. As society developed, self-help was replaced by a system of enforced payment of compensation. The harmed victim, or his or her kin, was entitled to compensation from the wrongdoer. Such offences were thus not perceived as public wrongs affecting society as a whole. Only the victim or his or her kindred had sustained a loss and was entitled to have this loss made good.

The community at large did however have some interest in such forms of wrongdoing. Even in Anglo-Saxon times severe punishments were meted out against offenders who were unwilling or unable to compensate. By the end of the twelfth century it had been realized that such wrongdoing had implications beyond the simple harm sustained by the victim. First the wider community and then the king began to assume responsibility for criminal justice. Those who had broken the “king’s peace” were brought before the kings who were itinerant justices. The charges were laid on behalf of the community by a “grand jury”. Punishments were imposed that did not involve compensation to the victim. In short, the criminal law began to assume one of its most distinctive features, namely, that it is concerned with public wrongs

The Civil Law

The civil law tradition is the most pervasive legal tradition in the world. It is found throughout Western Europe, in Latin America, and in parts of Africa and the Far East. Indeed, it was historically the basis of law in socialist countries, and socialist law, while classified separately, has many elements of the civil law remaining. As explained earlier, the civil law is sometimes called Romano-Germanic law because of its historical roots.

The Civil Law is code law. It is like the Ten Commandments of Moses that were published so that all people could know and follow them. Four major codifications of law, each building on the previous one, are involved in the history of the Civil Law. These are the Roman Law of the emperor Justinian, the Canon Law of the medieval Catholic Church, the Napoleonic Code of early nineteenth-century France, and the German Law of the people (Buergerliches Gesetzbuch) that was compiled under Bismarck after the German Empire was established in 1870. In each case, the legal code derived from earlier laws, customs, and informal regulations…

Writing a set of laws is not as simple as it may sound. As in writing constitutions, the framers must be concise, must cover all contingencies, and must not depart radically from accepted custom. The laws must be at once general enough to allow for particular cases to be fit into the scope of legal rules and specific enough to provide adequate guidance for those whose job it is to administer the law. The various incarnations of the Civil Law met these requirements with varying degrees of success.

The Common Law

The common law is more ancient, more complex, and more difficult to deal with than the French or German Civil codes. In Anglo-Saxon countries, its relative peculiarities have shaped not only the legal tradition but also a good part of the legal education, criminal procedure, and general approach to law and government…

The Modern History of Common Law

With the decline in the power of the monarchy and the ascendancy of parliament, the English court system stabilized; judicial independence was taken for granted and no longer considered a problem by the English rules. Even Oliver Cromwell and his puritan followers, who overthrew the Stuart kings and established a commonwealth in England between 1648 and 1660, feared the possible destabilizing effects of sweeping changes in the law. Cromwell thus made no major effort to supersede the common law (Prall, 1966). The English legal system remained a complex system of rules and precedents, interpreted with small shades of meaning and requiring a body of legal expects to deal with it. These legal experts had to save long apprenticeships to become familiar with the vast number of cases and precedents that would govern their decisions.

The Development of Criminal Procedure

The fact that the common law is based on precedent does not mean that this law is not written down in one place. In the eighteenth century, William Blackstone set out to compile all the laws in effect in England up to that time. His monumental work Blackstone’s Commentaries constituted a major step forward in English legal history. Since Blackstone’s time, the common law has continued to be compiled and brought up to date in various collections.

For most of its existence, the common law addressed all matters likely to need settlement in court-not only private concerns such as contracts, property disputes, family questions, and torts against individuals but also criminal; offenses (Holmes, 1923). But more important than the actual delineation of criminal offenses was the development of common law criminal procedure. Most of the criminal procedure rules that are set forth in the Fourth, Fifth, Sixth, and Eighth Amendments to the U.S. constitution, as well as the rules about bringing the accused before a judge to question his incarceration (habeas corpus), were adapted from common law rules and from parliamentary decrees based on the common law. The concern in U.S. courts with criminal procedure, which often seems excessive to people in civil law countries, has its origin in the English common law criminal procedure.