PROCEDURAL DUE PROCESS

Procedural Due Process

The Due Process Clause of the Fifth Amendment applies to the federal government, while the Due Process Clause of the Fourteenth Amendment applies to states and local governments. -

• Procedural due process ensures that the necessary procedures are followed before persons (including corporations) can be deprived of life, liberty, or property.

Remember that procedural due process is only required when the government acts intentionally—not merely negligently.

Procedural Due Process Rights

Life

• The government deprives a person of life

• E.g., Death Penalty

Liberty

• The government significantly restrains a person’s physical freedom, fundamental rights, or freedom of choice

• Examples: Incarceration; Ccmmitment to a mental institution; loss of parental rights

Property

• The government deprives a benefit from a person with a legitimate claim of entitlement by virtue of a statute, an employment contract, or custom

• Examples: loss of government-issued licenses; loss of welfare or disability benefits

The court will determine the amount of process due by weighing:

• The individual interest affected

• The risk of erroneous deprivation and value of additional safeguards and

• The government’s interest, including the burden/cost of additional process.

If the individual is deprived of Due Process

The individual whose interest is being deprived is generally entitled to (1) notice of the government’s action by an unbiased decision-maker and (2) an opportunity to be heard

• Note: If you see a question in which a person’s liberty or property interest is adversely affected by governmental action, ask whether the threatened interest is a protected one and, if so, what process is due.