26 November 2007
Rule of Law: Due Process of Law Protections
Democracies protect the rights of the accused through due process
In every society throughout history, those who have administered the criminal justice system have held power with the potential for abuse and tyranny. In the name of the state, individuals have been imprisoned, had their property seized, have been tortured, exiled and executed without legal justification and often without formal charges ever being brought. No democratic society can tolerate such abuses.
Every state must have the power to maintain order and punish criminal acts, but the rules and procedures by which the state enforces its laws must be public and explicit -- not secret, arbitrary, or subject to political manipulation -- and they must be the same for all. This is what is meant by due process.
To implement due process, the following rules have evolved in constitutional democracies:
• No one's home can be searched by the police without a court order showing that there is good cause for such a search. The midnight knock of the secret police has no place in a democracy.
• No person can be held under arrest without explicit, written charges that specify the alleged violation. Moreover, under the doctrine known as habeas corpus, every person who is arrested has a right to be brought before a court and must be released if a court finds that the arrest is invalid.
• Persons charged with crimes should not be held in prison for protracted periods before being tried. They are entitled to a speedy and public trial and to confront and question their accusers.
• Authorities are required to grant bail, or conditional release, to the accused pending trial if there is little likelihood that the suspect will flee or commit other crimes.
• Persons cannot be compelled to be witnesses against themselves. This prohibition against involuntary self-incrimination must be absolute. As a corollary, the police may not use torture or physical or psychological abuse against suspects under any circumstances.
• Persons cannot be subject to double jeopardy; that is, they cannot be charged with the same crime twice, if they have once been acquitted of it in a court of law.
• Because of their potential for abuse by the authorities, so-called ex post facto laws also are prohibited. These are laws made after the fact so that someone can be charged with a crime even though the act was not illegal at the time it occurred.
• Cruel or unusual punishments are prohibited.
None of these restrictions means that the state lacks the necessary power to enforce the law and punish offenders. On the contrary, the criminal justice system in a democratic society will be effective to the degree that its administration is judged by the population to be fair and protective of individual safety, as well serving the public interest.
(Distributed by the Bureau of International Information Programs, U.S. Department of State. Web site: http://usinfo.state.gov)
