It’s accepted as conventional wisdom in civil
liberties advocacy to avoid legal terms when communicating with people who
aren’t lawyers. Bogging people down with phrases like consent decree, pro
bono, and Title 18 is a great way to lose the interest of your audience.
And yet the phrase “due process” is one that
resonates. Decades of courtroom dramas in television and film have apparently
convinced Americans that due process is something we really should care about.
The simplest definition of due process is this: When
the government intends to deprive a person of their liberty – be it by
detaining the person or seizing their property or even ending their life by
execution – the person has a right to a process in which the burden is on the
government to show why such drastic action is necessary.
Unfortunately, the aspiration of due process doesn’t
always match the reality that plays out in the legislature and in courts around
the commonwealth.
Legislation currently before the state Senate is a
prime example. Known as Marsy’s Law, the bill is an amendment to the
Pennsylvania Constitution to guarantee certain rights for people who are
victims of crimes and for people who allege that they are victims of crimes.
You may wonder why the distinction. Our criminal
justice system presumes people are innocent until proven guilty. It is the
government’s burden to prove that a crime occurred and that the accused is
guilty of committing that crime.
But Marsy’s Law, which will be on the ballot in the
general election in November if it is passed by the Senate, establishes
constitutional rights for victims and alleged victims even before an accused
person has been convicted, thereby putting those rights on a constitutional
collision course.
For example, Marsy’s Law gives an alleged victim the
right to be notified of pretrial hearings. The person who is accused has a
preliminary arraignment hearing shortly after arrest, at which point a court
considers whether or not to assign cash bail or detain that person.
What will a court do when the accused person is
detained but the alleged victim has not been notified of the hearing? Whose
rights will prevail?
If Marsy’s Law passes, the Pennsylvania Constitution
will legally recognize people as victims even before the accused has been
proven guilty, effectively undermining a lynchpin of our system – the
presumption of innocence.
The assignment of cash bail is a well-known but
often opaque process in the criminal justice system in Pennsylvania, and it is
a proceeding that is already plagued by a lack of due process for people who
are accused.
Over the last two years, volunteers and staff from
the ACLU of Pennsylvania observed more than 2,000 bail hearings in
Philadelphia, and what we observed was astonishing.
In contradiction to the court rules that judges are
supposed to follow, arraignment courts in Philadelphia consistently assigned
cash bail to people who could not afford it, effectively criminalizing poverty.
People accused but not convicted were assigned cash
bail amounts of thousands and tens of thousands and even hundreds of thousands
of dollars with no consideration for the fact that many of them were
unemployed, living on public assistance, or even homeless.
The people we observed in these courts were
incarcerated because they were poor, not because the court found that they
posed a threat to public safety or a flight risk.
That’s why we filed a lawsuit against the
Philadelphia court system to force the judges to comply with the state Supreme
Court’s Rules of Criminal Procedure. We have no doubt that the excessive and
unfair assignment of cash bail is not isolated to Philadelphia.
Due process is a high-minded ideal and one we should
aspire towards. But public officials in the General Assembly and in the courts
in Pennsylvania sometimes fail to live up to that most basic American value.
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