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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