Due Process is a Constitutional right that comes from the 5th and 14th amendments. The 5th Amendment Due Process Clause applies to the federal government while the 14th Amendment applies to state and local government. The 14th amendment states that no state can "deprive any person of their life, liberty, or property without due process of law". This means that the state cannot deprive you of your basic rights without first allowing you proper legal proceedings such as a trial.

The Due Process Clause has two different distinctions:

  • Substantive Due Process: focuses on government regulation that deprives a person’s fundamental right, which is guaranteed to the person under the U.S Consitution. These are governmental regulation on conduct such as abortion, voting, sexual conduct and certain family members.
  • Procedural Due Process: Focuses on fair and timely procedures and may be implicated whenever the government tries to take a life, liberty, or property interest of an individual.

What Is Procedural Due Process?

Procedural due process usually is involved whenever the government deprives a person their life, liberty, or property interest without using fair and timely procedures. Procedural due process means that the government must provide the person with at least a timely notice, an opportunity to be subjected to an oral hearing, and the right to a decision in front of a neutral decision-maker.

The main purpose of the Procedural Due Process Clause is for the government to provide fair and timely procedures before depriving a person of a right or interest they are entitled to. These procedures also lessen the risk of errors that could occur which would improperly deprive a person’s interest.

What Is Life, Liberty, and Property Interest?

Any deprivation of life, liberty, or property will be subjected to a review in whether the government exercised fair and timely procedures. The procedures that the government is required to exercise depend on the type of interest that was deprived. These interest include:

  • Deprivation of Life: Whenever the state deprives someone of their life, strict procedures must be used. Deprivation of life means that the government wants to kill the person usually because of a criminal act in which the government wants to impose the death penalty on the individual because of the individuals criminal conduct.
  • Deprivation of Liberty: Whenever the state deprives a person of some significant freedom such as speech, religion, association, or movement.
  • Deprivation of Property: Occurs when a person has an entitlement and that entitlement is not given. These can be property interest in a driver’s license, welfare, social security benefits, and other benefits a person is entitled to.

What Kind of Procedures Are Required?

When it has been established that a person has been deprived of their liberty or property interest, the next step is to determine whether the government exercised fair and timely procedures in order to legitimately deprive someone of that interest. Courts look at several factors:

  • The importance of the private interest that has been deprived. The more important the interest, the more procedures are required to safeguard that interest to lessen the risk of government error.
  • The risk that an error that could occur through the procedures that the government did use when they deprived of that property and the value of additional procedural safeguards that could be used.
  • The importance of the government’s interest involved and the financial and administrative burdens it would cause the government if they did provide additional procedural safeguards.
  • The courts have stated that the more important the interest is, the more procedural safeguards are required to limit the risk of error that could occur. At least a notice and adequate hearing must be used before any property interest that a person is entitled to is deprived.
  • For example, when someone is facing the death penalty, his or her life is very important and it will outweigh any state financial or administrative cost. Therefore, the government is required to provide the most procedural safeguards available to ensure that there is no error.

What Are Some Procedural Protections That May Be Required for Certain Deprivations?

Examples of procedural protections:

  • The right to counsel to contest a matter.
  • Right to have the opportunity to cross-examine a witness.
  • Right to have a neutral person review an adverse decision.
  • Right to recover compensation for wrongful deprivation.
  • Right to notice and pre-deprivation hearing before depriving a license or welfare benefits entitled to.
  • Right to have an evidentiary hearing prior to termination of a continued employment.
  • A notice and hearing prior to garnishing a person’s wages.

What Happens If I Am Denied My Right to Due Process?

A denial of due process procedures is grounds for the reversal of the decision. The government must then reinstate the interest and have the decision reviewed under elevated procedural safeguards. This will usually give the deprived party another opportunity to challenge and contest the issue with better procedural safeguards in place.

Should I Contact a Lawyer?

If you have questions regarding your due process rights, or if you believe you have been denied your right to due process, you may want to contact a government lawyer. An experienced lawyer will be able to explain your rights to you and represent you in any appeals or administrative hearings that might be necessary.